G.R. No. 16598. May 31, 1961
HON. FRANCISCO JOSE, IN HIS CAPACITY AS FORMER JUDGE, COURT OF FIRST INSTANCE OF MANILA, GEORGE EDWARD KOSTER, INC., REPRESENTED BY MR. J.A. WOLFSON, LIQUIDATOR, MACARIO OFILADA…
BARRERA, J.:
Appeals (in CA-G. R. No. 24738-R), setting aside the alias writ of execution
issued by the Court of First Instance of Manila in Civil Case No. 11927 as null
and void, and making permanent the preliminary injunction issued therein by the
appellate court.
Pursuant to a decision duly rendered by the Court of First Instance of Manila
in Civil Case No. 11927 and affirmed by the Supreme Court,[1] therein defendant Jose C. Zulueta was ordered
to pay therein plaintiff George Edward Koster, Inc. “the sum of P46,093.77 with
interest at the rate of 6% per annum from September 27, 1949, with respect to
the sum of P30,000.00; and from December 8, 1949, as to the sum of P16,093.77,
until the entire amount is fully paid.” Said decision having become final and
executory, a writ of execution was issued on December 28, 1956.
On April 27, 1957, Zulueta paid the plaintiff corporation, then under
liquidation, J. A. Wolfson, liquidator, the sum of P46,093.77, for which the
corporation’s counsel issued a receipt in the following tenor:
“Received, for and in behalf of my client, G.E. Koster, Inc., Treasury
Warrant No. 394899 dated April 23, 1957, in the amount of Forty Six Thousand
Ninety three and 77/100 (P46,093.77) representing full payment of the
principal obligation of Mr. Jose C. Zulueta to my client, G.E. Koster,
Inc., for the above amount in G.R. No. L-9305, entitled G.E. Koster, Inc.
vs. Jose C. Zulueta’, in accordance with communications lately exchanged
between Mr. Zulueta on the one hand, and Atty. J.A. Wolfson, as liquidator of
G.E. Koster, Inc., and the undersigned, on the other hand, in connection with
this case.“This receipt cancels a previous one dated April 23, 1957 on the same subject
matter, and signed by Mr. Quintin Paredes III.“Manila, April 25, 1957.
“CIRILO PAREDES For and in behalf of G.E. KOSTER, INC. “ORIGINAL RECEIVED: JOSE C. ZULUETA” (Italics supplied.)
As a result, the Sheriff returned the writ of execution with the statement
that it has been partially satisfied.
Subsequently, George E. Koster, Inc. transferred for a consideration its
right to the unpaid balance of the judgment (representing the interest) against
Zulueta, to the Exchange Investment, Ltd. On November 16, 1958, Exchange
Investment, Ltd. was substituted for the judgment creditor George E. Koster,
Inc. Thereafter, the transferee Exchange Investment, Ltd. petitioned the court
a quo for the issuance of an alias writ of execution for the
collection of the “unsatisfied part of the judgment”. Defendant Zulueta filed an
opposition to the petition claiming that there was condonation of the interest
in consideration of his having helped in obtaining dollar allocations from the
Central Bank in favor of American Builders, Inc. in which George E. Koster was
personally interested together with one Mr. Lewis, and that there having been no
reservation made in the receipt at the time of payment of the principal, the
interest is presumed to have been paid in accordance with Article 1176 of the
new Civil Code. Petitioner filed an opposition denying the fact of remission and
arguing that neither the lawyer, who had no special authority, nor Koster
personally, as mere stockholder of the corporation, could compromise the
judgment in favor of the corporation by remitting the interest. After due
hearing, the court, in a reasoned order dated January 16, 1959, sustained the
contention of petitioner Exchange Investment, Ltd. and issued the alias
writ of execution. Zulueta filed a motion for reconsideration which was denied
in the court’s order of March 12, 1959. Copy thereof was served on said
defendant on March 17, 1959.
On April 18, 1959, and after the Sheriff of Manila had already placed under
garnishment certain properties belonging to the defendant the latter filed in
the Court of Appeals an original petition for certiorari and secured from said
court a writ of preliminary injunction enjoining the City Sheriff to refrain
from enforcing the aforementioned alias writ of execution.
After due hearing on the matter, the Court of Appeals rendered judgment,
dated July 30, 1959, holding that there was condonation of the interest payable
by Zulueta effected prior to the transfer of G. E. Koster, Inc.’s interest to
the Exchange Investments, Ltd., and that the trial court, therefore, gravely
erred in issuing the alias writ of execution for the collection of said
interest. The alias writ of execution was set aside and the preliminary
injunction made permanent. The petitioner now comes to us seeking to nullify the
said decision of the Court of Appeals.
As urged by herein petitioners in their brief, the petition for certiorari
filed by Jose C. Zulueta on April 18, 1959, or 32 days after he was notified of
the court’s denial of his motion for reconsideration of the order for the
issuance of an alias writ of execution, should have been dismissed,
appeal therefrom being the proper remedy.
Rule 67 of the Rules of Court provides:
“SECTION 1. Petition for certiorari.—When any tribunal, board, or
officer exercising judicial functions, has acted without or in excess of its or
his jurisdiction, or with grave abuse of discretion and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court alleging the
facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer as the law
requires, with costs.”
It is explicit thereunder, that for a writ of certiorari to issue, it must
not only be shown that the board, tribunal or officer acted without or in excess
of jurisdiction, or in grave abuse of discretion, but also there is no appeal or
other plain, speedy, and adequate remedy in the ordinary course of law available
to the aggrieved party.
In the case at bar, it is not disputed that the trial court’s order of
January 16, 1959, directing the issuance of the alias writ of execution
in question, as well as that of March 12, 1959, denying respondent Zulueta’s
motion for reconsideration of the aforesaid order, not being interlocutory are
appealable. No appeal from said orders, however, was interposed within the
reglementary period, nor any reason given for such failure.[2] Under the circumstances, and the right to
appeal having been lost for reasons not herein proved to be excusable, a
petition for certiorari is not proper,[3]
It is true, that in several instances, this Court allowed petitions for
certiorari notwithstanding the existence of appeal therein. It may be pointed
out, however, that in those instances, the orders complained of were either
issued in excess of or without jurisdiction,[4] or that, for certain special considerations,
as public welfare or public policy,[5] this
Court has decided to entertain the action. In other words, those are exceptional
instances where the provisions of Section 1 of Rule 67 abovequoted are not
strictly applied. The case at bar, certainly, does not fall within the
exception.
It is also argued that certiorari is the appropriate remedy where, as in this
case, execution had already been commenced, respondent citing Santos vs.
Pecson, 79 Phil., 261, wherein this Court said:
“Mere possible delay in the perfection of an appeal and in securing a
decision from the appellate court is no justification for departing from the
prescribed procedure. Delay might be a good ground for invoking the
extraordinary remedy in cases where there was lack or excess of jurisdiction or
abuse of discretion and the delay would work injustice to the complaining party
or make the appeal ineffectual to redress the error; where, for instance,
execution had been issued, a receiver had been appointed, or attachment had been
levied, and there is no time to waste. * * *.” (Italics
supplied.)
Evidently, the above pronouncement contemplates of instances where there is
right to appeal, said right still existing and available, but would be
inadequate to prevent the injury or wrong sought to be corrected. Hence, this
Court declared that certiorari may be allowed. This pronouncement cannot be
invoked in the instant case, because not only is there no showing that appeal
from the disputed orders would be inadequate and insufficient remedy, but also
that, the right to such appeal, at the time the petition for certiorari was
filed, has already been lost—through respondent’s own fault and negligence—and
no longer available. Furthermore, the execution of the order (to enforce
collection of the interest) was made after the expiration of the period
to appeal without such appeal having been perfected. Clearly, respondent lost
his right to question the correctness of said order.
With the foregoing conclusion, there is no need for us to pass upon the other
issues raised by petitioners.
Wherefore, the decision of the Court of Appeals is hereby reversed and set
aside, and the orders of the court a quo of January 16, 1959 and March
12, 1959 affirmed, with costs against respondent Zulueta. So
ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion,
Reyes, J.B.L., Dizon, De Leon and Natividad, JJ., concur.
[1] G. R. No. L-9305. (99 Phil., 945; 53
Off. Gaz., [4] 1076)
[2] It is merely alleged that the trial
court gravely abused its discretion in issuing the order complained of.
[3] Profeta vs. Gutierrez David,
71 Phil., 582.
[4] Director of Lands vs. Abada,
41 Phil., 71; Director of Lands vs. Santamaria, 44 Phil., 594; Perlas
vs. Concepcion, 34 Phil., 559; Director of Lands vs. Gutierrez
David, 50 Phil., 797; Clemente vs. Lucban, 53 Phil., 500; 2 Moran,
Comments on the Rules of Court, pp. 158-160, 1957 Ed.
[5] People vs. Zulueta, 89 Phil., 752;
Pineda vs. Ampil Mfg. Co., et al., 95 Phil., 930.