G.R. No. 40368. November 16, 1933
ANACLETO PIIT, GAUDENCIO E. PIIT, GELACIO MAGBAGO, AND BALBINA PIIT, PETITIONERS, VS. VICENTE B. DE LARA, JUSTICE OF THE PEACE OF CAGAYAN, ORIENTAL MISAMIS, AND CLEOFE VELEZ, AD…
HULL, J.:
action for certiorari praying that the writ of preliminary injunction
issued by the respondent justice of the peace against petitioners be
declared null and void.
When the petition was first
presented, we declined to issue the writ on the ground that the Court
of First Instance of Oriental Misamis had concurrent jurisdiction, and
there was no showing made as to why the writ was presented to this
court instead of to the Court of First Instance. After that action was
promulgated on September 23, 1933,[1]
petitioner asked for reconsideration and made a showing that the Court
of First Instance of Oriental Misamis was not open owing to the absence
of the judge and that it was impossible to say when a judge would be
assigned to that court.
Reconsideration was therefore granted and respondents have filed their answer and brief.
It clearly appears from the record presented that the action in the
justice of the peace court is one of unlawful detainer, not forcible
entry. The distinction between forcible entry and unlawful detainer as
set forth in section 80 of the Code of Civil Procedure is clearly shown
in Medel vs. Militante (41 Phil., 526). According to Act No.
3764, a justice of the peace may grant preliminary injunction in
forcible entry proceedings to prevent the commission of further acts of
dispossession, but the statute does not confer jurisdiction on the
justice of the peace to grant a preliminary injunction in an action of
unlawful detainer. The leading case of Devesa vs. Arbes (13 Phil., 273), which has been repeatedly followed, shows that an injunction should not have been issued in this case.
The preliminary injunction issued by the justice of the peace being in
excess of his jurisdiction must be declared null and void and a writ of
certiorari granted. Costs against respondent De Lara. So ordered.
Avanceña, C. J., Malcolm, Villa-Real, and Imperial, JJ., concur.
[1] Page 457, ante.