MARCELINO M. FLORETE, PETITIONER, VS. HON. QUERUBE C. MAKALINTAL, JUDGE OF FIRST INSTANCE OF ILOILO, CESAREO C. GOLEZ, AS MANAGER OF LUZON SURETY CO. INC., ILOILO AGENCY, SOFRON…

Ascribing grave abuse of discretion to the respondent Judge Querube
Makalintal, the petitioner Marcelino M. Florete seeks to annul the
order dismissing his amended complaint in Civil Case No. 2048 of the
Iloilo Court of First Instance.

For the purpose of this decision, simplified statement may be
made as follows:

On September 5, 1950, the Iloilo court issued a writ of
execution to enforce the money judgment the Luzon Surety Co. had
obtained against Ernesto Solidum in Civil Cases Nos. 1160 and 1189 of
the same court. Pursuant thereto the sheriff levied, on September 22,
1950, a definite attachment upon certain lot of Solidum that had been
preliminarily attached on February 26, 1949.

The petitioner herein, Florete, interposed a third-party claim;
but the sale on execution proceeded because a bond was duly filed under
section 15 of Rule 39. Successful purchaser at the public auction was
Cesareo Golez for the Luzon Surety Co.

Then Florete commenced Civil Case No. 2048 to recover the land
plus damages, alleging ownership thereof pursuant to a purchase by him
from Dionisio Barrera, who had acquired the land from Solidum in
September 1947.

Meanwhile as the period for redemption of the property was
running low, herein petitioner asked the court in Civil Case No. 2048
for an order suspending it for the duration of his complaint in said
Civil Case No. 2048. Even as the court denied his request, he
repurchased the property shortly before the expiration of the one-year
term.

Thereafter the defendants in said civil case No. 2048 lost no
time to move fro its dismissal, contending that having received full
satisfaction of their judgment with the redemption money paid by
Florete, they perceived no necessity of continuing the litigation, since
plaintiff could thereby repossesses the land^[1]. The motion to dismiss was
granted, over the objection and request for reconsideration of Florete,
who subsequently, formulated the instant certiorari proceedings here.

Upon careful deliberation we find that the cause must be
dismissed, for the reason that petitioner had a plain and adequate
remedy by appeal from the order dismissing his complaint in Iloilo.

If it were argued that his time to appeal had already lapsed
when he submitted this certiorari petition, the reply would be that such
circumstance does not alter the legal situation and governing principle^[2]. Otherwise, those which thru
negligence or some other reason fail to make their appeal in time, will
resort to special civil action to review decisions that have become
executory due to expiration of the statutory period.

The record discloses no saving or exceptional feature. On the
contrary it appears that the herein petitioner acquired this land in
August 1948, i. e. after a lis pendens (case No. 1160) had been
duly noted in March 1948, on the corresponding certificate of title at
the request of Luzon Surety Company.

Wherefore this petition is dismissed with costs. So ordered.

Paras, C. J., Feria, Pablo, Padilla, Tuason, Montemayor, Reyes,
Jugo, Bautista Angelo and Labrador, JJ., concur.

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^[1] Estoppel was likewise
asserted, but it is irrelevant now.

^[2] Government v. Judge of
Pampanga 50 Phil. 975; Bataclan v. Court of First Instance of Cavite 61
Phil. 428; Profeta v. Gutierrez David 40 Off. Gaz. (14th Sup.) p. 152.