FLORENCIO DOMINGO, PETITIONER, VS. TOMAS FLORDELIZA, AS AUXILIARY JUDGE, AND LUCIO BENITO, RESPONDENTS.

This is an action to obtain the writ of mandamus to require the respondent
judge to dismiss an appeal from a judgment of the court of justice of the peace
in an action of desahucio, to require the appellant to pay to the
appellee “diez uyones de palay” (ten uyones of palay) or its equivalent
value in the sum of P150 for each of the years 1913, 1914, 1915, and 1916 and
for each year thereafter until the final determination of the cause. The facts
upon which the petition is based are as follows:

That on the 26th day of January, 1914, the petitioner herein, Florencio
Domingo, commenced an action in the court of the justice of the peace of the
municipality of Piddig, of the province of Ilocos Norte, to recover the
possession of a certain piece or parcel of land described in paragraph 2 of that
complaint, together with damages for the use and occupation of said parcel of
land; that upon the 27th day of February, 1914, and after hearing the respective
parties, the justice of the peace rendered a judgment in favor of the plaintiff
and against the defendant, requiring the latter to deliver to the former “diez
uyones de palay” or its equivalent value in the sum of P150 and to deliver the
possession of the land to the plaintiff. From that judgment the defendant
appealed and executed and delivered in aid of his appeal a bond in the sum of
P200 to guarantee the compliance with the judgment of the justice of the peace;
that upon the 8th day of January, 1917, the appellee, petitioner herein,
presented a motion in the Court of First Instance praying that the appeal be
dismissed, that the cause be returned to the court of justice of the peace for
the execution of the sentence, for the reason that the appellant (Lucio Benito)
had not paid nor deposited the amount of said judgment, and to require him to
pay the amount corresponding to the years 1914, 1915, and 1916. That motion was
denied by the lower court on the 27th day of February, 1917.

Under the provisions of section 2 of Act No. 1778, in cases like the present,
if the defendant should fail to make the payment prescribed by said Act in
accordance with the provisions of the same, upon proof of such failure, the
Court of First Instance was required to dismiss the appeal. (Sec. 2, Act No.
1778; Yango vs. Romero, 32 Phil. Rep., 129; Castro vs. Javier,
R. G. No. 12140 [decided January 11, 1918].)^[1] That provision of section 2 of Act No.
1778, however, has been repealed by section 1 of Act No. 2588 and the Courts of
First Instance are no longer permitted nor required to dismiss an appeal from a
court of the justice of the peace in a desahucio case for a mere
failure on the part of the defendant-appellant to pay the various sums mentioned
in said Act. Now, if the defendant fails to make the payments prescribed from
time to time during the pendency of the appeal, the Court of First Instance,
upon motion, etc., shall order the execution of the judgment of the court which
had original cognizance of the case relative to the possession of the property
in litigation, and that such order for the execution of the judgment shall not
be a bar to the appeal in the Court of First Instance until the final decision
thereof on its merits.

It will thus be seen that the court, in refusing to grant the motion of the
plaintiff herein, did not violate the provisions of the existing law. The remedy
of the plaintiff herein was to file a motion asking for an execution of the
judgment rendered by the justice of the peace, and not for a dismissal of the
appeal.

Appeals of the kind we are now discussing can no longer be dismissed upon
motion for a mere failure to pay the different amounts required in a judgment of
desahucio rendered by a justice of the peace. If the appeal is properly
perfected the remedy of the appellee for a failure on the part of the appellant
to pay the different amounts specified in the law is to ask for an execution of
the judgment of the court below, and not for a dismissal of the appeal.

For the foregoing considerations, the writ of mandamus prayed for is hereby
denied, with costs. So ordered.

Arellano, C. J., Carson, Araullo, Street, Malcolm, Avanceña, and
Fisher JJ. concur.

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^[1] Not published.