FELIZA CAPISTRANO ET AL., PETITIONERS, VS. EMILIO PEÑA, JUDGE OF FIRST INSTANCE OF MANILA, VALERIANO FUGOSO, MAYOR OF CITY OF MANILA, LAMBERTO JAVALERA, CHIEF OF POLICE OF CITY …

The petitioners herein severally own and conduct eating places housed in a
temporary structure erected on Plaza Miranda, City of Manila, in the immediate
vicinity of the Quiapo Church and the site of the burned parish house or
convent. The place as part of a public plaza is admittedly city property
dedicated to public use.

Under date of June 29, 1946, the petitioners brought an action for injunction
in the Court of First Instance of Manila complaining that the City Mayor had
ordered the Chief of Police “to remove the shacks and stalls around the Quiapo
Church including the restaurants in question and that the respondents, through
their agents and laborers, are now removing or trying to remove the said
restaurants.” The plaintiffs were granted a writ of preliminary injunction.

The defendants for answer alleged, among other things, that the plaintiffs
had violated existing ordinances and sanitary rules and regulations; that said
plaintiffs had not secured building permits pursuant to existing city ordinances
to construct the above-mentioned structure; that the plaintiffs’ restaurants had
been found unsanitary by officers of the city health service.

Upon the issues thus joined, the parties went to trial, after which the court
rendered judgment “declaring that the restaurants in question constitute a
nuisance and that the Mayor of the City of Manila is empowered to revoke the
licenses of the plaintiffs, order the closure of the said restaurants and
require the plaintiffs to remove the same or cause them to be removed at the
plaintiffs’ expense, with costs against the plaintiffs.” In the same judgment
the preliminary injunction was dissolved.

Following the rendition of the aforesaid judgment the plaintiffs filed with
this court a petition for certiorari (G. R. No. L-1314) against the Honorable
Emilio Pena, trial Judge; the Mayor, and the Chief of Police. That petition was
dismissed on the ground that certiorari was not the appropriate remedy.
Meanwhile execution of the judgment had been issued by the respondent Judge,
whereupon the plaintiffs came back with the instant petition for prohibition,
making the sheriff respondent besides the above-named city officials and the
trial judge.

The issuance of execution is out of step with the judgment. The judgment does
not call for execution in favor of the defendants as it amounts to a dismissal
of the case. The defendants have not been granted or asked for any affirmative
relief, nor are the plaintiffs required to do anything. There is nothing to
execute. For this reason, the respondent Judge in issuing execution went beyond
the bounds of his jurisdiction. To this extent, prohibition is in order.

Nevertheless, the setting aside of the order of execution will not materially
help the petitioners. The City Mayor and the Chief of Police or their agents
may, in consequence of the judgment, proceed to remove the plaintiffs’ building
on their own account, unaided by the court or the sheriff. Section 4 of Rule 39
provides that “unless otherwise ordered by the court, a judgment in an action
for injunction * * * shall not be stayed after its rendition and before an
appeal is taken or during the pendency of an appeal. The trial court, however,
in its discretion, when an appeal is taken from a judgment granting, dissolving
or denying an injunction, may make an order suspending, modifying, restoring, or
granting such injunction during the pendency of the appeal, upon such terms as
to bond or otherwise as it may consider proper for the security of the rights of
the adverse party.” This rule pictures in bold outline the effect of the
judgment in an injunction case and the course open to the plaintiff if the case
is dismissed. The judgment in this case imports that the defendants are at
liberty to do what the plaintiffs seek to prevent. It denotes that the court
will not interfere with the defendants’ authority to tear down the plaintiffs’
shacks if the plaintiffs themselves do not do so. To stop them from removing the
structure during the pendency of the appeal, the plaintiffs’ remedy is to obtain
a new writ of temporary injunction. Such temporary injunction has to be secured
from the Court that rendered the judgment if it still has jurisdiction over the
case, otherwise from the higher court to which the appeal has been elevated, on
motion to be filed in the principal case. Prohibition in a separate proceeding
is not a substitute for this temporary relief.

Prohibition lies where the proceedings of any tribunal, person, etc., are
without or in excess of its or his jurisdiction, or with grave abuse of
discretion. (Section 2, Rule 67.) With the elimination of the order of
execution, there remains only the legality of the judgment to consider. The
legality of the judgment is unquestioned. It was absolutely within the
competence of the court a quo to render this judgment, and unless and
until said judgment is reversed or a restraining order is issued, the city
authorities may proceed to close the plaintiffs’ business. While execution is
unnecessary to aid the defendant Mayor and Chief of Police, their power is
untrammeled, even more now than before the case against them was dismissed, to
exercise what they claim is their authority and duty to abate public nuisance
and protect public health. The lawfulness and reasonableness of their proposed
action is yet to be finally decided by a superior court, but for the time being
they have in their favor the presumption that the action which they contemplate
is in accordance with law.

For another thing, prohibition does not lie since there is plain and adequate
remedy at law available to the plaintiffs, namely, the review of the main case
on appeal, and pending final determination of the appeal, the remedy by motion
for preliminary injunction, as above indicated.

The petition is granted so far as it attacks the legality of the execution,
and the respondent Judge and the Sheriff are commanded to desist from carrying
out said execution. The petition is denied in so far as it seeks to prohibit the
Mayor and the Chief of Police of the City of Manila from closing the
petitioners’ business and removing their building. There will be no special
pronouncement as to costs.

Moran, C.J., Paras, Feria, Pablo, Bengzon,
Hontiveros, and Padilla, JJ., concur.

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PERFECTO, J.:

Petitioners pray that respondents be restrained from enforcing the writ of
execution issued by respondent judge in civil case No. 73245 of the Court of
First Instance of Manila, after petitioners had filed their notice of appeal
against the decision in said case.

Upon the facts in this case, we are of opinion that respondent judge acted
with excess of jurisdiction, as is mildly stated in the majority opinion as
follows:

“The issuance of execution is out of step with the judgment. The judgment
docs not call for execution in favor of the defendants as it amounts to a
dismissal of the case. The defendants have not been granted or asked for any
affirmative relief, nor are the plaintiffs required to do anything. There is
nothing to execute. For this reason, the respondent judge in issuing execution
went beyond the bounds of his jurisidction. To this extent, prohibition is in
order.”

In the dispositive portion of the majority opinion it is decided:

“The petition is granted so far as it attacks the legality of the execution,
and the respondent Judge and the Sheriff are commanded to desist from carrying
out said execution.”

With this judgment we are in full agreement. As to the other provisions in
the majority judgment we disagree, as they are not justified either by the
pleadings of the petition or by the relief sought in the answer of respondents,
who only pray for the denial of the petition. By said additional provisions in
the majority decision, the majority appears to have fallen into the same
mistaken officiousness of respondent judge, by granting what is not sought for
by respondents.

HILADO, J.:

I concur in the foregoing opinion of Mr.
Justice Perfecto.