CONCEPCION P. CASTRO AND ANDRES M. CASTRO, PETITIONERS, VS. HON. EMILIO PEÑA, JUDGE OF COURT OF FIRST INSTANCE OF MANILA, VALERIANO FUGOSO, CITY MAYOR OF MANILA, EMILIA MATANGUI…

This is a petition for certiorari with
preliminary injunction. Petitioners Concepcion P. Castro and Andres M.
Castro under date of December 6, 1946, filed a complaint with the Court
of First Instance of Manila in Civil Case No. 1318 against the Honorable
Valeriano S. Fugoso, as Mayor of Manila, and Emilia Matanguihan and
Venacio Segismundo, in which complaint, among other things, it was
prayed that, after hearing on the merits, a permanent writ of injunction
be issued perpetually enjoining the defendant City Mayor, his agents,
employees, and all persons acting under his control and authority, as
well as the defendant Emilia Matanguihan, from enforcing the “decisions”
of October 14 and November 26, 1946, of the defendant City Mayor
mentioned in the body of the complaint (Annex A), with any other
equitable relief. Said so-called decision of October 14, 1946, of the
Mayor of Manila cancelled the assignment and adjudication alleged to
have been made of stalls Nos. 347 and 348, Divisoria Market, in favor of
the plaintiff Concepcion P. Castro by the former Mayor of the same
city; and by the so-called decision of November 26, 1946, the same
defendant Mayor reiterated his so-called decision of October 14, 1946,
above referred to. It was alleged in said complaint that these two
so-called decisions were rendered arbitrarily, unlawfully, and without
or in excess of the power and jurisdiction, and with grave abuse of the
discretion, of the said defendant Mayor.

In the answer filed by
said Mayor (Annex C) he, among other things, admitted having addressed
to the therein plaintiff Concepcion P. Castro the letter or what the
latter calls a “decision” referred to in paragraph 6 of the
above-mentioned complaint, which is the so-called decision of October
14, 1946, as well as having rendered the other so-called decision
referred to in paragraph 7 of the same complaint and dated November 26,
1946, but denied having acted in both cases arbitrarily, unlawfully and
without or in excess of his power and of his jurisdiction and with grave
abuse of discretion, alleging as a reason for such allegation that he
caused to be conducted a thorough investigation of the case wherein it
was disclosed that an error was committed in the first “decision”
adjudicating the stalls in question to the therein plaintiff Concepcion
P. Castro “who was not entitled to such adjudication under resolution
No. 50, Series of 1945, of the Municipal Board”. It was further averred
in said answer that “the adjudication made by the former City Mayor on
May 27, 1946, of the stalls in question in favor of the plaintiff
Concepcion P. Castro was erroneous and contrary to the provisions of
Resolution No. 50, series of 1945, of the Municipal Board, because it
turned out that the said plaintiff Concepcion P. Castro in May, 1945,
obtained the material occupation of the stalls in question from
co-defendant Emilia Matanguihan, the then legal occupant thereof, through
fraud.”

Upon petition of the plaintiffs in said case the therein
defendants Emilia Matanguihan and Venacio Segismundo were declared in
default by an order dated January 2, 1947 (Annex E).

The Court of
First Instance, the Honorable Emilio Peña presiding, decided that case
on April 7, 1947, and in the pertinent parts of its decision found the
following facts:

“The only question to be determined in this case is whether or
not the adjudication of the stalls to the defendant, Matanguihan, is
arbitrary, contrary to the facts and laws involved, and constitutes an
abuse of the exercise of the power of the City Mayor, as it is alleged
by the attorney for the plaintiff. From the evidence on record, the
Court is of the opinion that such adjudication was not in disregard of
the provisions of Resolution No. 50 of the Municipal Board approved on
December 15, 1945. Neither was it against the provisions of the Market
Code. It should be “taken into account that since October, 1941, the
defendant, Matanguihan, was occupying the stalls in question under
special assignment, and, having filed a regular application therefor,
she was given the regular assignment thereof during the year 1943. Since
then up to the month of May, 1945, she, as such regular holder, had
been paying the regular fees. It is an undisputed fact, however, that
the plaintiff , Concepcion, was not the regular holder of stalls Nos.
347-348 before the outbreak of the war, inasmuch as she was a regular
holder of stalls Nos. 183-184 of the Divisoria Market, which, at the
time she came back to Manila on May 1, 1945, were occupied by others,
and it was only on May 9, 1945, with the permission of the market
collector, during the absence of the regular holder, when plaintiff
Concepcion began to occupy the stalls in question, and in lieu of
claiming her former stalls to which she had a preferred right to occupy,
as per Resolution No. 50 above referred to, she chose to claim the
stalls in question because they are better located. Under the facts
above stated, it is, therefore, quite clear that the defendant, Emilia
Matanguihan, has a better right to the occupancy of said stalls. (Annex
“F”, p. 2).

Whereupon, said court determined the case by rendering judgment as follows:

“WHEREFORE, judgment is hereby rendered against the plaintiff
and in favor of the defendant, Emilia Matanguihan, declaring the latter
the legal occupant of stalls Nos. 347-348 of the Divisoria Market,
Manila, which the former is hereby ordered to vacate immediately,
without special pronouncement as to costs. The preliminary injunction
issued in this case is hereby dissolved.” (Annex F, p. 2; italics
supplied.)

Under date of April 30, 1947, that is, twenty-three days after the
rendition of the aforesaid judgment, counsel for the City Mayor
presented a petition for execution of the judgment (Annex I), and upon
that petition, despite the answer and opposition of the plaintiff
therein (Annex J), the court by an order of May 6, 1947, decreed the
issuance of the writ of execution prayed for.

This writ of
execution is known in the record as Annex L of the instant petition, and
it commanded the sheriff of Manila, among other things, “to cause the
plaintiff Concepcion P. Castro to forthwith vacate the stalls known as
Nos. 347-348 Divisoria Market, Manila, and that the defendant Emilia
Matanguihan have possession of the same, x x x”. It is now contended
that the instant respondent Emilia Matanguihan having been declared in
default for not having answered the complaint nor appeared in said case
No. 1318, it was beyond or in excess of the jurisdiction and it was with
grave abuse of discretion of the respondent judge, Honorable Emilio
Peña, of the Court of First Instance of Manila, to issue the
aforementioned writ of execution.

Three questions are presented,
namely, (a) whether, procedurally, certiorari lies under the above
stated facts; (b) whether the Court of First Instance had jurisdiction
and power to include in its judgment above transcribed the decree that
the plaintiff therein immediately vacate the stalls in question; and (c)
whether the writ of execution Annex L was totally or partially beyond
or in excess of the jurisdiction of the said court to issue, or its
issuance was with grave abuse of its discretion.

As to the first
question, it will be noticed that said civil case No. 1318 was for
injunction and “any other equitable relief”—the complaint therein is
entitled “complaint for injunction”. And the prayer in its paragraph (a)
was for “a permanent writ of injunction”. Such a case is specifically
covered by Rule 39, Section 4, as regards, among other things, the
execution of the judgment therein. Said section provides:

“Sec. 4. Injunction, receivership and patent accounting, not stayed.—Unless
otherwise ordered by the court, a judgment in an action for injunction x
x x 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 x x x denying an
injunction, may make an order x x x 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.”

If it was, therefore, desired to insist upon the granting of the
injunction, the above quoted provision of the rules required that the
party take an appeal from the judgment of the trial court and, as an incident thereto,
seek the exercise of said court’s discretion in the sense of granting a
preliminary injunction pending the appeal. Although petitioners did not
strictly follow this procedure, the instant petition in its paragraph
15 (and it is admitted in paragraph 1 of the answer of the respondents
Judge Peña, Mayor Fugoso, and Sheriff Pasicolan) that on May 6,
1947, the instant petitioners perfected their appeal from the judgment
in the main case, and it is alleged in paragraph 11 of the same petition
that on May 5, 1947, they had prayed in their answer to the
petition for execution that said execution be stayed either by the
reinstatement of the writ of preliminary injunction or by allowing them
to file a supersedeas bond, which allegation is also admitted in
paragraph 1 of the said answer. In this petitioners substantially
followed the procedure marked by Rule 39, Section 4.

The Court of First Instance, exercising its discretion
expressly conferred by the above cited section, refused to reinstate the
writ of preliminary injunction pending the appeal. In view of the
grounds supporting the judgment of said court and the other
circumstances of record, we can not say that it abused its discretion in
thus refusing to act as requested by petitioners.

In the recent
case of Kabiling vs. Peña, G. R. No. L-1268, September 30, 1947, we held
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. In that case, as in this,
the judgment of the Court of First Instance dissolved the preliminary
injunction previously issued.

“As a general rule, the taking of an appeal stays the execution
of the judgment. But such is not the case when the judgment is rendered
in an action for injunction, or in a receivership action, or when the
judgment is one directing an accounting in an action for infringement of
letters patent. Such judgments must be enforced notwithstanding the
appeal, unless the trial court, in an action for injunction, provides
otherwise upon such terms, as to bond or otherwise, as it may deem
proper for the security of the adverse party. This is in consonance with
rulings of our Supreme Court. When, in an action, a preliminary
injunction is issued, and is later dissolved in the final judgment, the
taking of an appeal does not stay its dissolution, unless the trial
court provides for the continuance of the status quo, subject to further orders of the appellate court. x x x”. (I Moran, 2nd ed., p. 647).

But this is not all. It is true that the relief thus granted in
the underscored portion of the judgment was not demanded in the
defendant Mayor’s answer Annex C, but it is no less true that the
allegations of his answer, placed against those of the complaint
therein, properly authorized the granting of said relief. In paragraphs 2
and 3 of said answer facts are alleged tending to show that the therein
plaintiff Concepcion P. Castro was not entitled to the adjudication of
the stalls in question under Resolution No. 50, Series of 1945, of the
Municipal Board and that said adjudication was erroneous and contrary to
said resolution because said plaintiff in May, 1945, obtained material
occupation of said stalls from Emilia Matanguihan, the then legal
occupant, thru fraud. And these allegations were upheld by the court in
its decision Annex F, as we have seen above.

The Court of First
Instance, of course, had jurisdiction to decide that case. Whether its
decision was erroneous or correct is entirely apart from its
jurisdiction and authority to render it, and however erroneous such
decision might be, the error would not divest the court of its
jurisdiction, and could only be corrected, if at all, by appeal.
(Herrera vs. Barretto, 25 Phil. 245, 251, 271).

As to the second
question, we are of opinion that the Court of First Instance did have
jurisdiction and power to include in its judgment the decree that the
therein plaintiff immediately vacate said stalls. It is clear that the
main issue in the case, as raised by the plaintiff’s complaint and the
defendant Mayor’s answer, was as to who, between the plaintiff and the
defendant Emilia Matanguihan, was legally entitled to occupy the
aforesaid stalls. And it is equally clear that the court before which
that question was submitted had plenary jurisdiction to decide who of
the said parties was legally entitled to occupy the stalls, and that
jurisdiction included not only the power to decide the said question,
but also the power “to do all things that are reasonably necessary for
the administration of justice within the scope of its jurisdiction” (7
R. C. L. p. 1033, Sec. 62 and cases therein cited), and the authority
“to make such orders and issue such writs as may be necessary and
essential to carry the judgment or decree into effect and render it
binding and operative (7 R. C. L. p. 1034, sec. 63 and cases therein cited; italics supplied).

“62. Inherent Powers of Courts.—It is fundamental that
every court has inherent power to do all things that are reasonably
necessary for the administration of justice within the scope of its
jurisdiction, x x x” (7 R. C. L. p. 1033).

“63. A court having jurisdiction to render a judgment or decree,
has authority and jurisdiction to make such orders and issue such writs
as may be necessary and essential to carry the judgment or decree into
effect and render it binding and operative.” (7 R. C. L. p. 1034; italics )

Rule 124, section 5(c) mentions as one of the inherent powers of
every court that “to compel obedience to its judgments, orders, and
process” in a case pending therein. As already stated, the then
plaintiff Concepcion P. Castro, under the allegations of her complaint,
claimed the better right to the occupancy of the controverted stalls,
but the respondent City Mayor, under the allegations of his answer,
asserted that the party to whom he had finally adjudicated said stalls,
the therein defendant Emilia Matanguihan, had the better right to occupy
them under resolution No. 50, Series of 1945, of the Municipal Board.
Hence, the Court of First Instance was called upon to decide said
question within the issues raised by the said pleadings. And the
jurisdiction of the Court of First Instance comprised not solely the
authority to decide said question but also to make its judgment or
decree operative and binding, or to put it otherwise, to compel the
parties litigant to respect it. It had, undoubtedly, jurisdiction to
declare, as it did, that Emilia Matanguihan was the one legally entitled
to occupy said stalls, and such declaration was necessary to
its judgment upholding the legality and correctness of the Mayor’s
action. The court possessing that jurisdiction, it would indeed be
absurd to say that said court, after having so adjudged and decreed,
lacked authority to order the adverse party Concepcion P. Castro to
immediately vacate the stalls. Concepcion P. Castro, like the rest of
the parties litigant in the case, was certainly bound to respect and
abide by the judgment decreeing that Emilia Matanguihan was the party
legally entitled to occupy the stalls. Without prejudice to her right of
appeal and any stay opportunely and properly granted, would she be
respecting and abiding by that judgment by refusing to vacate? The most
effective way of disobeying and defying said judgment, with the saving
just indicated, was for her to persist in occupying the stalls. If the
Court of First Instance had jurisdiction, power and authority to make
her respect and abide by its judgment, it necessarily had jurisdiction,
power and authority to order said occupant to vacate the stalls.

Such order to vacate was “necessary and essential to carry the
judgment or decree into effect and render it binding and operative”,
for the court’s judgment that Emilia Matanguihan was the one legally
entitled to occupy the stalls would be meaningless if the court lacked
the power and authority to make it work through the additional decree of ouster.

Of course, that judgment inured to the benefit not only of the
City of Manila represented by the respondent Mayor but also of the
respondent Matanguihan, even as a defaulted defendant in said case No.
1318 (Velez vs. Ramas, 40 Phil. 787, 792; Frow vs. De la Vega, 15 Wall.
552; 21 Law. ed. 60).

One of the cases cited in support of the
above quotation from 7 R. C. L. is that of Taylor vs. Bulett, 15 Idaho
265, 19 L. R. A. (N.S.), 535, which cites, among others, the case of
Root vs. Woolworth, 150 U. S. 401; 37 Law. Ed., 1123, from which last
case the following is quoted:

“It is said, however, on behalf of the appellant that the
original decree only undertook to remove the cloud upon the title, and
did not deal with the subject of possession of the premises, and that
the present bill, in seeking to have possession delivered up, proposes
to deal with what was not concluded by the former decree. This is
manifestly a misconception of the force of the original decree, which
established and concluded Morton’s title as against any claim of the
appellant, and thereby necessarily included and carried with it the
right of possession to the premises as effectually as if the defendant
had himself conveyed the same. The decree in its legal effect and
operation entitled Morton to the possession of the property, and that
right passed to the appellee as privy in estate.

“In Montgomery vs. Tutt, 11 Cal., 190, there was a decree of
sale, which did not require or provide for the delivery of possession of
the premises to the purchaser. Subsequently the defendant refused to
surrender possession, and a writ of assistance was sought by the
purchaser to place him in possession of the premises under the master’s
deed. Field, J., delivering the opinion of the court, said:

” ‘The power of the court to issue the judicial writ, or to
make the order and enforce the same by a writ of assistance, rests upon
the obvious principle that the power of the court to afford a remedy
must be co-extensive with its jurisdiction over the subject-matter.
Where the court possesses jurisdiction to make a decree, it possesses
the power to enforce its execution. It is true that in the present case
the decree does not contain a direction that the possession of the
premises be delivered to the purchaser. It is usual to insert a clause to that effect,
but it is not essential. It is necessarily implied in the direction for
the sale and execution of a deed. The title held by the mortgagor
passes under the decree to the purchaser upon the consummation of the
sale by the master’s or sheriff’s deed. As against all the parties to
the suit, the title is gone; and, as the right to the possession, as
against them, follows the title, it would be a useless and vexatious course to require the purchaser to obtain such possession by another suit.
Such is not the course of procedure adopted by a court of equity. When
that court adjudges a title to either real or personal property, to be
in one as against another, it enforces its judgment by giving the
enjoyment of the right to the party in whose favor it has been
decided.'” (37 Law. ed., 1126.) (Italics supplied.)

The principles enunciated in the foregoing quotation are clearly applicable to the present controversy. In Root vs. Woolworth, supra,
as it appears from the foregoing quotation, the original decree of the
court was only to remove the cloud upon the title of Morton, but it was
held that that decree in its legal effect and operation entitled Morton
to the possession of the property, and that said right passed to the
appellee as privy in estate. In the main case now under consideration
(Civil Case No. 1318) the Court of First Instance decreed that Emilia
Mutanguihan had the better right to occupy the stalls; upon the same
principle and for the same reason as in the Root-Woolworth case, that
decree in its legal effect and operation entitled said Matanguihan to
the occupation of the stalls: and what is even plainer is that said
decree in its legal effect and operation divested Concepcion P. Castro
of the right to continue occupying said stalls, except when a stay of
execution should be timely and properly granted her.

Similarly, as decided in Montgomery vs. Tutt, 11 Cal., 190,
cited in the Root-Woolworth decision, when a court adjudges a title to
either real or personal property to be in one as against another, “it
enforces its judgment by giving the enjoyment of the right to the party
in whose favor it has been decided”.

Moreover, the aforesaid
decree of ouster and writ of execution can still be sustained even if it
should be said, on petitioners’ side, that the execution of such decree
of ouster should be governed by Section 2, instead of Section 4, of
Rule 39. It will appear that the respondent judge’s order Annex K,
directing the issuance of execution, and the petition for execution
Annex I, filed by counsel for the respondent Mayor and counsel for the
respondent Emilia Matanguihan, bring the case within the discretionary
power of the trial court to order that execution issue before the
expiration of the time to appeal, pursuant to said Section 2. There can
be no question that in the decree of ouster the City of Manila,
represented by the respondent Mayor, had a distinct interest of its own,
as the owner of the stalls in controversy—it was interested in the
stalls being disposed of in the manner it, as such owner, had determined
through its Mayor. The decree was a vindication of its own proprietary
rights. As such interested party, the City, through the Mayor, was the
first movant in the petition for execution, Annex I, wherein reasons
were alleged which the judge deemed “well founded” in his order Annex K.
Liberally construed (Rule 1, Section 2), this order should be
considered as adopting by reference the reasons alleged in the petition
for execution, Annex I, within the meaning and intent of Rule 39,
Section 2. In fact, this was the holding in Joven vs. Boncan, G. R. No.
45898, April 10, 1939, wherein the Court said that a statement by
reference of the good reasons required by the rule, as it existed in
section 144 of Act 190, was sufficient as, for instance, “when such
reasons appear in a motion for execution, and reference thereto is made
in the special order as ground therefor”. (I Moran, Comments on the
Rules of Court, 2nd ed., p. 643). It has been held in two other cases
(Lusk vs. Stevens, 64 Phil., 154, and Guevara vs. Court of First
Instance of Laguna, No. 46698, June 20, 1940, 40 Off. Gaz., [7th Supp.],
191) that the element that gives validity to an order of execution is
the existence of the good reasons if they may be found distinctly somewhere in the record (cited volume and page of same Comments on the Rules of Court).

As above stated, Emilia Matanguihan, by her counsel, also was a
movant in the petition for execution Annex I. Did she have a right to
be such, having been declared in default? In Frow vs. De la Vega, supra, cited as authority in Velez vs. Ramas, supra,
the Supreme Court of the United States adopted as ground for its own
decision the following ruling of the New York Court of Errors in Clason
vs. Morris, 10 Johns., 524:

“It would be unreasonable to hold that because one defendant had
made default, the plaintiff should have a decree even against him,
where the court is satisfied from the proofs offered by the other, that
in fact the plaintiff is not entitled to a decree”. (21 Law. Ed., 61).

The reason is simple: justice has to be consistent. The complaint stating a common cause of action
against several defendants, the complainant’s rights—or lack of them—in
the controversy have to be the same, and not different, as against all
the defendants, although one or some make default and the other or
others appear, join issue, and enter into trial. For instance, in the
case of Clason vs. Morris above cited, the New York Court of Errors in
effect held that in such a case if the plaintiff is not entitled to a
decree, he will not be entitled to it, not only as against the defendant
appearing and resisting his action but also as against the one who made
default. In the case at bar, the cause of action in the plaintiffs’
complaint was common against the Mayor of Manila, Emilia Matanguihan,
and the other defendants in Civil Case No. 1318 of the lower court. The
Court of First Instance in its judgment found and held upon the evidence
adduced by the plaintiff and the defendant Mayor that as between said
plaintiff and defendant Matanguihan the latter was the one legally
entitled to occupy the stalls; and it decreed, among other things, that
said plaintiff, immediately vacate them. Paraphrasing the New York Court
of Errors, it would be unreasonable to hold now that because
Matanguihan had made default, the said plaintiff should be declared, as
against her, legally entitled to the occupancy of the stalls, or to
remain therein, although the Court of First Instance was so firmly
satisfied, from the proofs offered by the other defendant, that the same
plaintiff was not entitled to such occupancy that it peremptorily
ordered her to vacate the stalls. If in the cases of Clason vs. Morris, supra, Frow vs. De la Vega, supra, and Velez vs. Ramas, supra,
the decrees entered inured to the benefit of the defaulting defendants,
there is no reason why that entered in said case No. 1318 should not be
held also to have inured to the benefit of the defaulting defendant
Matanguihan. Indeed, the doctrine in said three cases plainly implies
that there is nothing in the law governing default which would prohibit
the court from rendering judgment favorable to the defaulting defendant
in such cases. If it inured to her benefit, it stands to reason that she
had a right to claim that benefit, for it would not be a benefit if the
supposed beneficiary were barred from claiming it; and if the benefit
necessitated the execution of the decree, she must be possessed of the
right to ask for the execution thereof as she did when she, by counsel,
participated in the petition for execution Annex I.

Section 7 of Rule 35 would seem to afford a solid support to
the above considerations. It provides that when a complaint states a
common cause of action against several defendants, some of whom answer,
and the others make default, “the court shall try the case against
against all upon the answer thus filed and render judgment upon the
evidence presented by the parties in court”. (Italic supplied.) It is
obvious that under this provision the case is tried jointly not only
against the defendants answering but also against those defaulting, and
the trial is held upon the answer filed by the former; and the judgment,
if adverse, will prejudice the defaulting defendants no less than those
who answer. In other words, the defaulting defendants are held bound by
the answer filed by their co-defendants and by the judgment which the
court may render against all of them. By the same token, and by all
rules of equity and fair play, if the judgment should happen to be
favorable, totally or partially, to the answering defendants, it must
correspondingly benefit the defaulting ones, for it would not be just to
let the judgment produce effects as to the defaulting defendants only
when adverse to them and not when favourable.

The third question, in view of the foregoing considerations, must be answered in the negative.

Wherefore, it is adjudged and decreed that, with the dissolution of the
writ of preliminary injunction heretofore issued, the instant petition
be, as it is hereby, denied with costs.

So ordered.

Paras, Pablo, Bengzon, Briones, Padilla, and Tuason, JJ., concur.

Paras, J., I hereby certify that Chief Justice Manuel V. Moran voted for the denial of this petition.

---

PERFECTO, J.:

The main question in this case hinges on whether the order and
writ of execution, both issued on May 6, 1947, in civil case No. 1318 of
the Court of First Instance of Manila, Concepcion P. Castro, et al. vs.
the Honorable Valeriano B. Fugoso, et al., should be set aside or not.

Stalls Nos. 347 and 348 of the Divisoria Market, Manila,
actually occupied by petitioners, are the object of controversy in said
civil case, where the complaint filed by petitioners seek to restrain
Mayor Fugoso from enforcing his orders cancelling the assignment and
adjudication of the market stalls in question made in favor of
petitioners by Mayor Nolasco on May 27, 1946, pursuant to resolution No.
50, series of 1945, of the municipal board.

Respondents Emilia
Matanguihan and Venancio Segismundo, claimants of the same stalls and
defendants in said civil case, having failed to file any answer to the
complaint, notwithstanding the fact that they had been served with a
copy of said complaint and summoned since December 7, 1947, were
declared in default by order of respondent judge of January 2, 1947.

Upon filing a bond in the amount of P500.00, respondent judge ordered,
on December 13, 1946, the issuance of a writ of preliminary injunction,
ordering defendants to refrain from ejecting petitioners from the market
stalls in question.

On April 7, 1947, respondent judge rendered
decision declaring Emilia Matanguihan legal occupant of the stores in
question, ordering petitioners to vacate them and dissolving the writ of
preliminary injunction.

On April 15, 1947, petitioners filed a motion for reconsideration, which was denied on April 19, 1947.

On April 30, 1947, Emilia Matanguihan moved for the immediate execution
of the decision in accordance with Sections 2 and 4 of Rule 39.
Petitioners opposed the motion, alleging that Emilia Matanguihan has not
shown adequate interest in the case, she having been declared in
default on January 2, 1947; that no probable damage has been alleged to
the City of Manila by the maintenance of status quo in the
case; that petitioners were willing to post a bond in an amount to be
fixed by the court in accordance with the second sentence of Section 4
of Rule 39.

On May 6, 1947, respondent judge issued an order as follows:

“Considering well-founded the petition for execution filed on May 2, 1947, by the Assistant City Fiscal;
“Let a writ of execution be issued.
“It is so ordered.”

The above order clearly appears not to be in conformity with Rule 39, Sections 2 and 4 of which are as follows:

“Sec. 2. Execution discretionary.—Before the expiration
of the time to appeal, execution may issue, in the discretion of the
court, on motion of the prevailing party with notice to the adverse
party, upon good reasons to be stated in a special order. If a record on
appeal is filed thereafter, the special order shall be included
therein. Execution issued before the expiration of the time to appeal
may be stayed upon the approval by the court of a sufficient supersedeas
bond filed by the appellant, conditioned for the performance of the
judgment or order appealed from in case it be affirmed wholly or in
part.

“Sec. 4. Injunction, receivership and patent accounting, not stayed.—Unless
otherwise ordered by the court, a judgment in an action for injunction
or in a receivership action, or a judgment or order directing an
accounting in an action for infringement of letters patent, 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.”

The order, therefore, is null and void, and this court should declare it so.

Striking circumstances alleged by petitioners make more imperative the granting of the petition.

It is alleged that the Mayor’s answer contains no counterclaim or
prayer for the ejectment of petitioners or for the delivery of the
stalls in question to respondent Emilia Matanguihan and, therefore,
respondent judge was without power or authority to issue a writ of
execution to enforce a relief not based on any counterclaim and not
prayed for by any of the defendants in the case, one of them having been
declared in default.

Another important fact that must be taken
into consideration is that petitioners were deprived of their
opportunity to be heard in the morning of May 6, 1947, the day set for
the hearing of the petition for execution, because that morning
petitioners’ counsel found the courtroom deserted and there was no one
to hear the petition.

Notwithstanding the fact that no hearing
took place in said morning, a writ of execution was served on
petitioners before noon of the same day, May 6, 1947, by a sheriff
accompanied by one Anacleto Hernandez, a former private secretary to the
Mayor. The officious intervention of said person in the case, there
being no showing that he is an agent or attorney of Emilia Matanguihan,
the defaulted party who is being favored by the writ of execution, casts
a distressing shadow in the legal situation, making more imperative the
correction of the order of respondent judge, Issued in violation of the
Rules.

For all the foregoing, we vote to grant the petition.