LILIA YUSAY GONZALES, PETITIONER, VS. HON. WENCESLAO L. FERNAN, AS JUDGE OF THE COURT OF FIRST INSTANCE OF ILOILO AND FLORENCIA P. VDA. DE YUSAY, RESPONDENTS.

A petition for mandamus
was filed in this Court on October 8, 1962, wherein it is alleged:  “That petitioner is of legal age,
married and resident of Molo, Iloilo City; That respondent Judge is a public
official with office in the Provincial Building, Iloilo City, while respondent Florencia P. Vda. de Yusay is of legal age, widow, and resident of Aurora
Subdivision, Iloilo City in which office and residence, the said
respondents may be served with summons; That
on May 30, 1956, a reamended project of partition was filed by the
Commissioner appointed by the Court of First Instance of Iloilo in Special Proceedings No. 459 entitled ‘Intestate Estate of the late Matias Yusay‘, which project of
partition was approved by the said court on June 7, 1956, and affirmed
by the Supreme Court in G. R. No. L-11378 on August 21, 1959, which intestate
proceedings however, are still pending up to the present, the debts thereof not
being totally paid, and there is as yet no delivery of the estate to the heirs;
That in the said project of partition, petitioner, as a natural child of
Matias Yusay, was awarded
one-third (1/3) of the whole estate while the two-thirds (2/3) was awarded to
his only legitimate son, Jose S. Yusay; That among
the one-third (1/3) share assigned to the petitioner is a parcel of land with
area of 10.8405 hectares and covered by OCT No. 42956 of the Register of Deeds
of Iloilo supposedly Lot No. 5904 of the Cadastral Survey of Pototan, Iloilo, which however, upon verification was in
reality Lot No. 5927 of Pototan Cadastre; That since
the basis of the partition was the area and the assessed value of the
properties in question, there was an obvious mistake in the placing of the said
lot number, for which reason, petitioner filed a motion to correct the reamended project of partition dated August 17, 1962 with
reference to the said lot attaching therein the certification of the Iloilo
Register of Deeds to the effect that it is Lot No. 5927 and not Lot No. 5904
which has an area of 10.8405 hectares, and praying that Lot No. 5904 of Pototan Cadastre appearing in Group II, Part V of the
project of partition dated May 13, 1956 be read as Lot No. 5927 of Pototan Cadastre, a copy of said motion is attached hereto
and made integral part hereof as Annex ‘A’; That on August 31, 1961, respondent
Florencia P. Vda. de Yusay, widow of Jose
Yusay and one of his heirs (Jose S. Yusay died on November 30, 1956) without disputing the
accuracy of the above certification of the Register of Deeds, filed an
opposition to the said motion alleging substantial­ly that since the said
project of partition has already been affirmed by the appellate court and is
now final and executory, the probate court can no
longer amend the same, * * *; That on September 22, 1962, respondent Court
denied said motion sustaining the view of respondent Florencia
P. Vda. de Yusay that he
has no more juris­diction to amend or correct the said project of partition, *
* *; That on September 24, 1962, the petitioner filed a motion for re­consideration
of the said order * * *; That in refusing to assume jurisdiction, respondent
Court is unlawfully neglecting the performance of an act which the law
specifically enjoins as a duty resulting from an office and that from such
neglect, petitioner has no other plain, speedy and adequate remedy in the
ordinary course of the law except the present petition.”^[1]

In the aforesaid petition, the question raised, according to
petitioner, is the availability of mandamus as the proper remedy to compel the
lower court to assume jurisdiction under the above circumstances.  It is its view that it could not do so as the
final project of partition had been previously affirmed by us.

Petitioner, on the other hand, would rely on a doctrine that an
order of affirmance by appellate court would not
prevent the trial court “from opening the judgment for the hearing of a
new party and the determination of a new claim”,^[2]
from which petitioner would draw the conclusion that since the mistake as to
what is the lot that possesses an area of 10.8405 hectares was not passed upon
in the project of partition, respondent Judge, the Hon. Wenceslao
L. Fernan, now retired, could and should validly
assume jurisdiction.

The prayer of the
petition was as follows:  “That the
petition be given due course for being sufficient in form and substance; That
after hearing, judgment be rendered ordering respondent Judge to assume
jurisdiction in hearing the motion to correct re-amended project of partition
dated August 17, 1962 referred
to hereinabove; Petitioner prays for any remedy just and equitable in the
premises.”^[3]

The petition was given
due course on October 10, 1962 in our Resolution, with respondents being
ordered to file within ten (10) days from notice, an answer to the
petition.   No such answer was filed
until now.

Then on October 4, 1968,
petitioner filed a motion for an early decision.  Such a motion is however superseded by a
subsequent motion seeking withdrawal filed by petitioner on November 12, 1968,
and worded thus:  “COMES NOW
petitioner, thru her undersigned counsel, and to this Honorable Court most
respectfully moves to withdraw her petition in the above-entitled case on the
ground that she is seeking another remedy, for the same cause, in the Court of
First Instance of Iloilo, sitting as cadastral court, under Section 112 of Act
496.”^[4]

WHEREFORE, the above motion is granted and the present
petition considered withdrawn, without pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro and
Capistrano, JJ., concur.

^[1]
Petition, pp. 1-3.

^[2]
Petition, p. 5.

^[3]
Ibid.

^[4]
Motion to Withdraw Petition.