NARCISA DE LA FUENTE AND HER HUSBAND, JOSE TEODORO, JR., PETITIONERS, VS. FERNANDO JUGO, JUDGE OF FIRST INSTANCE OF MANILA, AND LUIS BORROMEO, 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superseded by the judgment of the court of first instance rendered on August 21,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 * * *.”
(Italics ours.) 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 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.