ANGEL OTIBAR AND ANASTACIO OTIBAR, PETITIONERS VS. HON. DEMETRIO G. VINSON, JUDGE OF THE COURT OF FIRST INSTANCE OF LEYTE, JOAQUIN BADIABLE, CELSO INABANGAN, ET AL., RESPONDENTS.

In an action for forcible entry instituted by Anastacio Rocha,
predecessor-in-interest of petitioners Angel and Anastacio Otibar, in
the Justice of the Peace Court of Carigara, Leyte (Civil Case No. 151)
against respondents Joaquin, Maria, and Silvestra Badiable, and Celso
Ina-bangan, judgment was rendered by said court on February 8, 1960 in
favor of Rocha against respondents, ordering the latter to vacate the
land subject of the action and to deliver its possession to Rocha and
to pay the said plaintiff the sum of P50.00 as damages plus P100.00 as
attorney’s fees. From said decision, respondents appealed to the Court
of First Instance of Leyte, presided by respondent Judge Demetrio G.
Vinson (Civil Case No. 612), but said appeal was, on June 11, I960,
dismissed by the latter court upon motion of plaintiff, on the ground
that the appeal bond was defective. No appeal appears to have been
taken from this order of dismissal. The plaintiff, instead of asking
for the remand of the case to the Justice of the Peace Court from which
it originated, petitioned the Court of First Instance for the immediate
execution of the judgment of the court of origin, which motion was
granted by the respondent Judge. The Provincial Sheriff fully served
the writ of execution on respondents. .Respondents, however, refused to
deliver possession of the land. On June 25, therefore, Rocha filed in
the same Court of First Instance, a motion for contempt against
respondents. On July 25, he also filed a motion to garnish the salary
check of respondent Celso Inabangan to satisfy the judgment. On July
26, he filed a second motion for contempt and a third motion for
contempt on July 27. On July 30, 1960, the respondent Judge in view of
the difficulty in identifying the property in question, issued an order
requiring the Sheriff “to relocate” said property. On August 16, Rocha
filed a fourth motion for contempt. On August 29, he filed an ex parte
motion praying that respondents be ordered to abide by the Sheriff’s
report. On September 20, he filed an ex parte motion for the issuance
of a warrant of arrest of respondents. Acting on the latter motion, the
respondent Judge issued an order requiring respondents to explain why
they should not be punished for contempt. On October, respondent Judge
issued another order requiring the Sheriff to “constitute in the place
and deliver the land in question to the plaintiff” (Rocha). On October
13, 1960, Rocha filed an urgent ex parte motion for the issuance of a
warrant of arrest and another similar motion for warrant of arrest on
October 22.

On November 12, 1960, respondent Judge still issued another order
requiring a commissioner to conduct an “ocular inspection” of the land
in question and to constitute (identify) the same.

On November 28, 1960, Rocha filed a motion, this time praying
respondent Judge to order the return of the record of the case to the
Justice of the Peace Court of Carigara “for resolution of the questions
raised with reference to the execution of the judgment” (of said
Justice of the Peace Court dated February 8, 1960), for the reason that
having dismissed the appeal of respondents on June 11, 1960, respondent
Judge was deprived of jurisdiction to continue proceeding with the
case, and the enforcement of the judgment of the Justice of the Peace
Court which has become final and executory has become the exclusive
concern of said court (Justice of the Peace Court). Said motion was
denied by respondent Judge on January 7, 1961, for lack of merit.

On February 7, 1961, petitioners (claiming to be the legal heirs of
Rocha, the plaintiff in the cases below) filed with this Court the
present petition for certiorari with mandamus.

In this instance, petitioners claim that respondent Judge acted
without or in excess of jurisdiction or with grave abuse of discretion
in deciding to continue with the proceedings in his court
notwithstanding his dismissal of respondents’ appeal from the decision
of the Justice of the Peace Court on June 11, 1960.

The claim is meritorious. Upon the facts of the case, the Court of
First Instance either acquired no appellate jurisdiction because the
appeal had never been perfected, or if it did, it lost its jurisdiction
to proceed with the case upon dismissal of the appeal. The only step
left te the Court of First Instance, under the circumstances, was to
remand the case to the Justice of the Peace Court for the due execution
of the judgment which was revived upon the dismissal of the appeal.
(Capunu vs. Llorente, 29 Phil. 392; see also Morco vs. Munoz, 72 Phil.
270; Fortuna vs. Viloria, 14 Phil. 232, and Caisip vs. Cabangon, 109
Phil., 150). In ailing to do so and in entertaining Rocha’s several
motions for execution, contempt, arrest, etc. all filed subsequent to
the dismissal of the appeal, respondent Judge acted without or in
excess of his jurisdiction and with grave abuse of discretion,
remediable by certiorari.

Respondents contend that petitioners, by filing said motions
notwithstanding the dismissal of their appeal, are guilty of negligence
or laches and, therefore, are estopped or precluded from seeking the
present remedy of certiorari and mandamus in this Court. The contention
is untenable because jurisdiction can not be conferred by laches or
even consent, of the parties, and herein petitioners are assailing the
jurisdiction of respondent Judge to issue the various orders aforesaid
in the case he had previously dismissed, which question may be raised
at any stage of the proceedings (See Garganta, et al., vs. Court of
Appeals, 105 Phil., 412).

Wherefore, the writs of certiorari and mandamus prayed for by
petitioners are hereby granted. Respondent Judge’s orders subsequent to
his dismissal of the case (Civil Case No. 151, Justice of the Peace
Court of Carigara) are set aside and declared null and void, and he is
directed to remand the case to the Justice of the Peace Court of
Carigara for execution of the latter’s judgment dated February 8, 1960.
Without costs. So ordered.

Padilla, Bautista Angelo, Labrador, Conception, Reyes, J. B. L., Paredes and Dizon, JJ., concur.