JESUS B. LOPEZ, PETITIONER, VS. RAFAEL DINGLASAN, LINO GUTIERREZ, JUDGE GUILLERMO CABRERA, AND SHERIFF OF MANILA, RESPONDNETS.

These proceedings have been brought against the Honorable
Rafael Dinglasan, Judge of the Court of First Instance of Manila, Lino
Gutierrez, the Honorable Guillermo Cabrera, Judge of the Municipal Court, and
the Sheriff of Manila, to compel Judge Dinglasan to approve an appeal in a case
for certiorari pending in his court and to forward the record thereof to this
Court. The petitioner also seeks a writ of preliminary injunction to restrain
execution of the judg ment of respondent Judge Cabrera pending the appeal.

According to the allegations of the petition, in a case for
unlawful detainer commenced in the municipal court of Manila, in which
respondent Lino Gutierrez was plaintiff and petitioner herein, Jesus B. Lopez,
was defendant, the parties submitted the case “for decision on a compromise
agreement.” Accordingly, Judge Cabrera rendered Judgment “in the tenor of the
foregoing agreement, enjoinihg both the plaintiff and the defendant to adhere to
and comply (with) all the terms and conditions (thereof), without special
pronouncement as to costs.” Referring to the effect of that judgment, petitioner
says that, “being a judgment by compromise,” the same “was non-appealable.”

Alleging that some of the terms of the agreement had been
violated, plaintiff in the detainer case, Lino Gutierrez, asked for execution of
the judgment, and Judge Cabrera granted the motion. Inasmuch as, says Lopez in
his petition at bar, “there was no appeal from the decision of Judge Cabrera and
there was no other adequate remedy at law, and as the respondent Judge Cabrera
refused to cancel and set aside the writ of execution despite motions filed
asking for its cancellation, the petitioner had to file, and did file, a
petition for certiorari with the respondent Judge of First Instance of Manila,
the Honorable Rafael Dinglasan,” with a prayer for preliminary injunction. On
January 12, 1948, Judge Dinglasan, after hearing both parties on whether a writ
of preliminary injunction should issue, denied Lopez’s motion, stating that “no
sufficient ground exists therefor.” From Judge Dinglasan’s refusal to enjoin the
execution of Judge Cabrera’s decision, Lopez, on February 17, 1948, filed a
notice of appeal with the request “that under Rule 41, section 17, the original
record of this case be forwarded to the Supreme Court, and that a supersedeas
bond be fixed.” The appeal was disallowed in an order of February 21, 1948.

It is to compel Judge Dinglasan to approve the appeal that the
present application for mandamus was instituted.

Section 2, Rule 41, of the Rules of Court reads:

“No interlocutory or incidental judgment or order shall stay
the progress of an action, nor shall it be the subject of appeal until final
judgment or order is rendered for one party or the other.”

“Interlocutory orders or judgments are not appealable, because,
prior to the rendition of the final judgment, they are, at any time, subject to
such corrections or amendments as the court may deem proper. This does not mean,
however, that they are not appeadable at all. Appeal may be taken therefrom but
after final judgment is rendered.” (I Moran’s Rules of Courts, 729, 730, citing
Manila Electric Co. vs. Artiaga, 50 Phil., 147, and Olsen & Co. vs. Olsen,
48 Phil., 238, 240.)

There is no doubt, and there is no contention to the contrary,
that Judge Dinglasan’s refusal to issue a writ of preliminary injunction to
restrain the execution of the judgment of the municipal court was an
interlocutory or incidental order and is not a proper subject of appeal.

After the oral argument, the parties in a written. stipulation
submitted the case “for decision on the merits upon the present state of the
record, with the same effect as if this case had been brought up to this Court
upon appeal from the orders of the respondent Judge Dinglasan, as appear alleged
in the body of the petition herein, instead of upon the prayer therein for
mandamus to forward said appeal to this court.” This stipulation was
approved.

After a more thorough consideration of the pleadings and the
issues, and of the nature of the instant action, we reach the conclusion that
the stipulation was out of order, and should not be sanctioned. The stipulation
would have this Court decide a case on appeal without a record on appeal and
briefs with specification of errors essential to appellate review. What is more
anomalous is that there is no judgment to review no judgment to affirm, reverse
or modify. The parties to all intents and purposes would have us act as a court
of first instance. Parties can not by stipulation confer upon an appellate court
jurisdiction to hear and finally decide a case still in the process of trial in
the lower court.

It is true that this Court has original jurisdiction in
extraordinary legal remedies concurrent with the courts of first instance, but
it is no less true that where an action of this kind was actually commenced in
one of the latter courts, the Supreme Court can take cognizance of that
particular action only on appeal, after all the steps and processes prescribed
in such cases have been complied with.

The petition is dismissed with costs.

Moran, C.J., Ozaeta, Feria, Bengzon, Padilla,
Montemayor, and Reyes, JJ., concur.

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DISSENTING

PARAS, J.:

I dissent.

In an ejectment case filed in the Municipal Court of Manila,
the following decision was entered:

“The parties to the above-entitled case submitted today a
written agreement which reads as follows—

(a) El demandado pagara al demandante los alquileres que
este reclama de P50 por el mes de Diciembre de 1946 y de P65 por los meses de
Enero, Febrero, Marzo, Abril y Mayo de 1947, y por los meses siguientes por la
misma cantidad hasta que el demandado siga ocupando la finca en cuestion.

(b) El demandante se compromete y se obliga a reparar
las goteras que tiene la citada finca asi como poner nuevos postes en el baño a
cambio de lo que necesitan ser cambiados, cuyo costo se estima que seria
alrededor de P50.

(c) El demandado podra ocupar la finca hasta tanto que
no encuentre otro donde pueda trasladarse y mientras tanto este caso no llegue,
el demandante no podra pedir el desahucio contra el demandado, a menos que este
deje de pagar el alquiler de la finca, segun lo convenido.

(d) El demandante hara las reparaciones mencionadas en
el inciso (b) dentro de cinco dias despues de que el demandado haya
pagado los alquileres arriba mencionados, y la falta de cumplimiento de esta su
obligacion dara derecho al demandado a mandar hacer dichas reparaciones por
cuenta del demandante descontando el importe de cualquier alquiler que tenga que
pagar al demandante, siempre que dichas reparaciones no pasen de P50, en el bien
entendido que si el costo de dichas reparaciones excedieren de P50, en caso tal,
la diferencia de mas sera por cuenta del demandado, si este quiere hacerlo.

“Wherefore, judgment is hereby rendered in the tenor of the
foregoing agreement, enjoins ing both the plaintiff and the defendant to adhere
to and comply all the terms and conditions, without special pronouncement as to
costs. It is so ordered.

For alleged failure of the defendant to pay the stipulated
rental, the municipal court, upon petition of the plaintiff, issued a writ of
execution directing the ouster of the defendant. The latter thereupon filed in
the Court of First Instance of Manila a petition for certiorari with preliminary
injunction, with the view to preventing the writ of execution from being carried
into effect. The respondent Judge of the Court of First Instance of Manila,
while giving due course to the petition for certiorari, denied the prayer for
the writ of preliminary injunction. From this order of denial, the defendant
proceeded to perfect an appeal. The respondent Judge, however, refused to allow
the appeal on the ground that the order being complained of is interlocutory.
The defendant has now come to us in a petition for mandamus, to compel
respondent Judge to certify defendant’s appeal.

The majority are in accord with the respondent Judge’s theory
and are decreeing a simple dismissal of the present petition. There can be no
doubt that the order in question is interlocutory. But there are cogent reasons
for conceding necessary relief to the defendant (petitioner herein).

In my opinion, the decision of the municipal court hereinabove
fully quoted merely had the effect of stamping judicial approval (though
unnecessary) to the new contract of lease between the petitioner and the herein
respondent Lino Gutierrez (plaintiff in the municipal court). The reciprocal
rights and obligations of the petitioner and the respondent Lino Gutierrez
thereunder are of course as binding as any contractual relations, but they are
not enforceable by execution under the decision which has not made any definite
and executory adjudications.

Accordingly, I hold that the writ of execution issued by the
municipal court is not in order; and the respondent Judge should have granted
plaintiff’s prayer for the writ of preliminary injunction. The petition for
certiorari filed in the Court of First Instance could have been filed directly
in this Court and the same remedy should hafoe been accorded by us. Under these
circumstances, we are justified in disregarding technicalities and squarely
passing on the irregularity committed by the municipal court. At any rate, under
a liberal interpretation, we may consider the present petition as one for
certiorari, specially in view of the stipulation of the parties herein to have
the basic case decided on the merits. The majority are mistaken in supposing
that we shall thereby be, in an appellate jurisdiction, disposing of the case
which is only in the process of trial and in the absence even of a decision,
because there are sufficient facts on record and the parties have agreed to
submit the case thereon.

It cannot be said that there is no decision since the refusal
of the respondent Judge to issue a writ of preliminary injunction, if not
timely counteracted, will result in the ouster of the petitioner and in the
conversion of the petition for certiorari pending in the Court of First Instance
into an academic suit.

If the majority are unwilling to forget technicalities, they
may, as this Court has done in many instances, at least make even a dictum for
guidance of all concerned .

PERFECTO, J.:

We concur in this dissent.