GREGORIO ARANETA, INC. FRANCISCO JAVIER DE PITARQUE Y ELIO, ISABEL MARIA DE YNCHAUSTI, AND ANA MARIA DE PITARQUE Y DE YNCHAUSTI, PETITIONERS VS. SOTERO RODAS, JUDGE OF FIRST INS…

FERIA, J.:


This is a Motion for reconsideration of the resolution of this Court
dismissing the special civil action of certiorari and mandamus filed by the
petitioners against the respondents, which asked that the order of the
respondent Judge denying the petitioner’s motion to compel the other respondents
to answer certain interrogatories submitted by the former to the latter be set
aside, and that the respondents be ordered to issue an order compelling the
respondent corporation to said interrogatories.

According to section 1, Rule 67, certiorari lies when the respondent court or
judge has acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion. There is no doubt or question ‘that the respondent judge or
court had and did not exceed the court’s jurisdiction, but it is alleged that
said judge has acted with grave abuse of discretion in denying the petition of
the petitioners.

It is obvious that discretion, is the power exercised by courts to determine
questions arising in the trial of a cause to which no rule of law is applicable,
but which from their nature and the circumstances of the case, are controlled by
the personal judgment of the court, or the judgment of the court uncontrolled by
fixed rules of law (See Bouvier’s Law Dictionary, Third Revision, Vol. I, p.
884). When the law does not provide a rule or norm for the court to follow in
deciding a question submitted to it, but leaves it to the court to determine it
in one way or another at his discretion, the judge is nob absolutely free to act
at his pleasure or will or arbitrarily. He must decide the question, not in
accordance with law for there is none, but in conformity with justice, reason
ana equity, in view of the circumstances of the case. Otherwise the court or
judge would abuse his discretion (See Hodges vs. Conrado Barrios, and
Redfern, L-1904, ^[1] promulgated April
16,1948, concurred in by the dissenter from the resolution sought to be
reconsidered in the present case).

Therefore, the question to be determined in the present case is whether or
-not there is a rule of law which controls or guides the respondent judge in
deciding whether an interrogatory should be allowed or not.

It is well settled, and admitted in paragraphs 11 and 14 of the petition for
certiorari, that the scope of discovery by means of written interrogatories
under Rule 20 literally copied from Rule 35 of the Federal Rules of Civil
Procedure like the scope of discovery by deposition, is governed by Sec. 2, Rule
18 of the Rules of Court, which was taken from Rule 26 of said Federal Rules of
Civil Procedure promulgated by the Supreme Court of the United States. Under the
provisions of said Sec . 2, Rule 18 “the deponent may be examined regarding any
matter, not privileged, which is relevant to the subject matter involved in the
pending action, whether relating to the claim or defense of the examining party,
or to the claim or defense of any other party” (Dixon vs. Phifer, D.C.
S. C. 1939, 30 F. Supp., 627; Coca Cola Co. vs. Dixi Cola Laboratories,
D. C. Md. 1939, 30 F. Supp., 275; Landry vs. O’hara Vessels, D. C. Md.
1939, 29 F. Supp., 423; Lanova Corporation vs. National Supply Co.,
D.C. Pac., 1939, 29 F. Supp., 119; Aner vs. Hershey Cremexy Co. D. C.
Va. 1940, 1 F. R. D., 286.)

Since the scope of depositions and written interrogatories is limited to
matters which are not priviledge and relevant to the subject matter which are
not priviledge and relevant to the subject matter invilved in a pending action,
and the determination of wether or not an interogatory is priviledge or material
is not an integatory is priviledge or material is not left to the discretion of
the court or judge, for there is a law applicable which serves as norm or guide
for the court or judge to follow, the respopndent judge could not commit a grave
abuse of discretion which it did not have deciding whether or not the
interrogatories in question are immaterial to the subject matter involved in the
pending action, and therefore they can not be allowed. If the respondent judge
has acted contrary to law in deciding that the written interrogatories
propounded by the petitioners to the other respondents are immaterial, he would
have committed an error of law which the court can not correct in the present
case; but not a grave abuse of discretion.

In our resolution of July 27, 1948, we dismissed the petition for certiorari
and mandamus on the ground that appeal at the proper time is the proper remedy;
and relying on the dissenting opinion of one member of this Court, that “appeal
can not be the proper remedy for petitioners’ complaint,” all the arguments in
the petitioners’ motion for reconsideration tend to show that appeal is not the
speedy and adequate remedy, because it would entail unnecessary expenses and
unnecessary delay and waste of time.

The resolution, in stating that appeal at the proper time is the proper
remedy, did not mean to say that certiorari may lie, that is, that the
respondent judge has acted without or in excess of his jurisdiction, or with
grave abuse of discretion, but there is appeal or appeal is the proper remedy.
The order complained of is interlocutory and hence not forthwith appealable; it
may only be assigned as erroneous if appeal is taken from the final judgment.
Two scope of subjects which interrogatories may be asked under Rule 20 of the
Rules of Court is as broad aa the field of inquiry which a person interrogated
is called to testify orally in actual trial, (Landry vs. O’hara
Vessels, sup. sq.); and in the same way that neither appeal nor certiorari lie
against a ruling; of the court which reject an immaterial question during the
trialf no such remedies may be resorted to against a court’s order that does not
allow a written interrogatory which is not material.

What the resolution means to say, and we now expressly so hold, is that
certiorari does not lie at all for the reasons above stated, and the proper
remedy is to raise the question of admissibility of such interrogatories on
appeal from the final judgment of the respondent court or judge. It is obvious
that the question whether certiorari or appeal is the proper and adequate remedy
may only come up when the court has acted without or in excess jurisdiction and
the act complained of is appealable.

In view of all the foregoing, motion for reconsideration is denied. So
ordered.

Moran, C.J., Paras, Pablo, Briones, and Tuason,
JJ., concur.

DISSENTING

PERFECTO, J.:

On July 27, 1948, we voted to give due course to the petition, stating as
follows:

“Contrary to the contention in the majority resolution, appeal cannot be the
proper remedy for petitioner’s complaint. The proceeding of inter- rogatories
provided by Rule 20 has to be undertaken before the final trial of a case. The
rule has been drafted as one of the means to avoid the possibility of cases
being fought through a strategy of surprises and concealment of truth. If
petitioners are entitled to have their interrogatories answered under Rule 20,
It is unjust and contrary to law to compel them to proceed with the final trial
of the case without said interrogatories being answered first. If the lower
court erred and violated the rule in refusing to have petitioner’s
interrogatories answered, appeal will be inadequate to remedy the situation, as
the case will be decided by the lower court without the petitioner’s being given
the opportunity of making use of the answers that the other party may give.
Reversal on appeal of the denial will entail retrial in the lower court and the
unnecessary delay which the law abhors.”

There is no reason why we should reverse the stand thus taken. The najority
resolution, denying the motion for Reconsideration., is a belated answer to our
above opinion. The answer is unconvincing.

We vote to grant the motion for reconsideration and to give due course to the
petition.

BENGZON, J.:

I concur in the above dissent.