ADRIANO D. DASALLA, ET AL., PETITIONERS AND APPELLANTS, VS. CITY ATTORNEY OP QUEZON CITY, ET AL., RESPONDENTS AND APPELLEES.

Appeal from an order entered on 20 May 1960 by the Court of First Instance of Rizal, Quezon City branch, dismissing for lack of merit a
petition which sought to prohibit the Attorney of Quezon City or his
assistants from proceeding with the preliminary investigation of three
criminal complaints for usurpation, grave coercion and estafa filed
against the petitioners.

In an amended complaint dated 8 June 1959 filed in the Court of
First Instance of Rizal, Quezon City branch, the petitioners alleged
that on 28 September 1950 they were induced to sign an instrument
mortgaging their two parcels of land situate in Quezon City; that under
the terms and conditions thereof the Philippine Bank of Commerce was to
grant them a loan of P8,500, and, for and in consideration of P850, the
Republic Surety & Insurance Co., Inc. was to guarantee the payment
of the loan; that in default of such payment of the surety company
bound itself to pay it and was granted the right to foreclose the
mortgage on the two parcels of land; that on 9 April 1959 they found
out that the Philippine Bank of Commerce had not granted any loan to
them and the Republic Surety & Insurance Co., Inc. had not assumed
any guaranty obligation; and that on 9 May 1959 the defendants twice
attempted to enter forcibly upon their property but failed because of
police intervention; and prayed that a writ of preliminary injunction
issue to restrain the defendants from entering upon their property;
that the instrument purporting to constitute a mortgage on their two
parcels of land be declared null and void; that transfer certificates
of title Nos. 23595 and 23596 in the name of the Republic Surety &
Insurance Co., Inc., issued in lieu of their certificates of title, be
cancelled; that the extra-judicial foreclosure of the mortgage by the
surety company also be declared null and void; that the defendants
Francisco T. Koh and the Republic Surety & Insurance Co., Inc. be
ordered to pay them the sum of P10,000 as moral damages and also the
costs, and for just and equitable relief (Annex B, civil case No.
Q-4328).

On 15 May 1959 the respondent Francisco T. Koh, as president of the
Republic Surety & Insurance Co., Inc., filed against the
petitioners three complaints for usurpation (LS. No. 1893, Annex A),
grave coercion (LS. No. 1894, Annex A-1) and estafa (LS. No. 1895,
Annex A- 2). On 18 August 1959 the petitioners asked the Quezon City Attorney
to suspend the preliminary investigation of the criminal complaints on
the ground that there was. a prejudicial question raised in a civil
action that had been filed by them and was pending trial in the Court
of First Instance of Rizal, Quezon City branch (Annex C). On 1
September 1959 the Quezon Assistant City Attorney set the resumption of
the investigation for the 16th day of the same month and notified the
parties thereof “in view of certain points which need clarification” and the petition to suspend the investigation would be acted
upon after the parties against whom the complaints had been filed shall
have been heard (Annex D). On 14 September 1959 the petitioners filed
in the Court of Appeals a petition for a writ of prohibition against
. the respondents, the Quezon City Attorney and Francisco T. Koh,
docketed as CA-G.R. No. 25313-R (Annex E). ” On 26 October 1959 the
Court of Appeals denied the petition (Annex F). On 4 November 1959
the Quezon Assistant City Attorney set anew the resumption of the preliminary investigation of the criminal complaints for 27 November
1959 at 2:00 p.m. To prevent him from j proceeding with the preliminary
investigation, on 16 November 1959 in the Court of First Instance of
Rizal, Quezon City branch, the petitioners commenced this special civil
action for prohibition against the same parties (No. 4800). On 13
January 1960 the Quezon Assistant City Attorney filed an answer to the
petition for prohibition; and on the same day respondent Francisco T.
Koh, a motion to dismiss. On 19 January 1960 the petitioners objected
to the motion to dismiss. As already stated, on 20 May 1960 the Court
dismissed the petition for lack of merit and from that order the
petitioners have appealed.

The petitioners insist that there is a prejudicial question brought
about by the institution of the civil case that puts in issue the
validity of the mortgage and foreclosure of the two parcels of land
that precisely are involved in or connected with the criminal
complaints for usurpation, grave coercion and estafa .filed against
them. They contend that the investigation by the Quezon Assistant City
Attorney should be stopped or suspended until after the prejudicial
question shall have been determined or decided in the aforementioned
civil case, for, they argue, if the mortgage on the two parcels of land
referred to and their extra-judicial foreclosure be annulled, the
criminal complaints for usurpation, grave coercion and estafa, all in
connection with the mortgage of the aforesaid two parcels of land,
their extra-judicial foreclosure and the attempts by the complainants
to take possession of the parcels of land, would no longer have any
ground on which to stand.

Instead of filing a brief, respondent-appellee Francisco T. Koh
moved for the dismissal of the appeal on the ground that there is no
specific assignment of errors in the petitioners-appellants’ brief and
that the appeal is frivolous.

Granting that the prejudicial question raised by the appellants be
legally correct, still the time or moment to ask for the suspension of
the criminal proceedings is not during the period of preliminary
investigation by the city prosecuting officer-but after such
investigation and after he shall have filed the informations against
the appellants. Should the prosecuting officer find that the mortgage
on the parcels of land was not really executed, or, if executed, it was
through deceit and misrepresentation, he certainly would not file the
informations.

The order appealed from is affirmed, without pronouncement as to costs in both instances.

Bautista, Angelo, Concepcion, Barrera, Paredes and Dizon, JJ., concur.
Reyes, J.B.L., concurs in the result.