G.R. No. 2945. October 28, 1905

This is in effect an application for an injunction to restrain the
Hon. John C. Sweeney, judge of the Court of First Instance of Manila,
and the sheriff of the said city from taking any further steps to
enforce the execution of a judgment rendered in said court in the case
of B. H. Macke et al. vs. Jose Camps.

The only question submitted at this time is the prayer for preliminary injunction, which we are of opinion must he denied.

Passing over certain defects of form in the application, it is
sufficient cause for denial of the preliminary injunction that it does
not appear from the facts set up in the complaint that the principal
relief prayed for should be granted. It appears from the allegations
contained in the complaint that judgment has heretofore been rendered
in the above-mentioned cause in favor of the plaintiff, and that the
defendant, who is the applicant in these proceedings, has given notice
of appeal, and is actually engaged in the preparation of his bill of
exceptions. It appears further, that execution has issued on the
judgment by special order of the court; and the purpose of these
proceedings is to prevent the levy of that execution, pending appeal.

Section 144 of the Code of Civil Procedure provides that—

“Except by special order of the court, no execution
shall issue upon a final judgment rendered in the Court of First
Instance until after the period for perfecting a bill of exceptions has
expired.”

Thus the legislator has placed the issuance of the order complained
of in the discretion of the trial court, and this court will not
interfere to modify, control, or inquire into the exercise of this
discretion, which is thus conferred by statute, unless it be alleged
and proven that there has been an abuse or excess of authority on the
part of the trial judge, or unless it appears that since the issuance
of the order conditions have so far changed as to necessitate the
intervention of the appellate court to protect the interests of the
parties against contingencies which were not contemplated by the trial
judge at the time of the issuance of the order (Jerome vs. McCarter, 21
Wallace, U. S., 17^[1] Calvo 5 Phil. 185. Gutierrez et al.,^[2] 4 Off. Gaz., 193.)

It does not appear from the complaint in this case that any of these
reasons exist as a basis for relief, and therefore the prayer for
preliminary injunction should be denied. So ordered.

Arellano, C.J., Torres, Mapa, and Johnson, JJ., concur.
Willard, J., concurs in the result.

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^[1] 88 U.S., 17.

^[2] 4 Phil. Rep., 203.