LUIS GUZMAN, AS ADMINISTRATOR OF THE ESTATE OF DONA ERIBERTA SANCHEZ, DECEASED, PETITIONER, VS. FAUSTINO LICHAUCO, HONORABLE CARLOS IMPERIAL, JUDGE OF THE COURT OF FIRST INSTANC…

The respondent, Faustino Lichauco, is at
present prosecuting two actions of unlawful detainer to recover the
possession of certain properties located on Rizal Avenue, in the city
of Manila. In one of these actions Luis Guzman is named as defendant,
in his capacity as administrator of the estate of Dona Eriberta Sanchez
de Guzman. In the other action Jose Guzman is the person named as
defendant, but Luis Guzman has intervened in his capacity as
administrator; and all the property in question appears to be in his
possession. The plaintiff was successful in both these actions before
the justice of the peace, who assessed the reasonable value of the use
and occupation of the respective premises, in the one case at P250, and
in the other at P300, per month.

The unsuccessful defendants having appealed in both cases upon
December 9, 1920, to the Court of First Instance of Manila, it became
their duty, in conformity with the provisions of section 88 of the Code
of Civil Procedure, as amended by Act No. 2588, in case they desired to
avoid the immediate execution of the judgment pending the appeal, to
pay to the plaintiff, or into court, “on or before the tenth day of
each calendar month,” the sums of money respectively fixed by the
justice of the peace as the reasonable value of the use and occupation;
and such payments have in fact been made by the defendants each month,
though in most instances later than the tenth of the month, that is to
say, respectively on February 14, March 18, April 11, May 10, June 10,
July 11, August 11.

Considering these payments to be dilatory, under the provision of
law above referred to, and being further desirous of obtaining the
possession of the premises at once the plaintiff, through his
attorneys, on August 16, 1921, moved the Court of First Instance to
execute the judgment, for failure of the defendants—appellants in that
court—to make payment on or before the tenth of the month then current.
To this motion his Honor, Judge Carlos Imperial, acceded, and an order
was accordingly entered for the immediate execution of the judgment.

The present petition was thereupon filed in this court by Luis
Guzman, administrator, as aforesaid, against the respondents named in
the caption hereof, for the purpose of obtaining relief from said
order; and the respondents have duly demurred.

The petition purports to be an application for the writ of mandamus
but the facts stated show that proper remedy—supposing any remedy at
all to be here available— is by petition for the writ of certiorari, to
quash the order complained of; and in conformity with the constant
practice of this court always to entertain an original petition for
relief in the aspect most conformable with the facts presented, we
shall consider this petition in the character of an application for the
writ of certiorari. We may state in passing that the petition contains
a request for a preliminary injunction to restrain the court from
executing the order referred to, but this application was refused by us.

Omitting mention of certain features of the litigation as not being
vital to the question before us, it may be stated that the contention
for the petitioner is to the effect that, in computing the time within
which the monthly payments are to be made by a defendant who has
appealed from the decision of a justice of the peace, under section 88
of the Code of Civil Procedure, as amended, the date of the appeal is
to be taken as the point of departure and from thence the months are to
be computed as of thirty days length, as indicated in article 7 of the
Civil Code, and that the obligated party has ten days from the date of
the expiration of this month, within which to make payment for that
month. Applying this to the present case the date from which the
computation begins should be taken to be December 9, and the several
succeeding months would have expired on or about January 8, February 7,
March 9, April 8, May 8, etc. Supposing that the petitioner had ten
days thereafter within which to make the required payments, the
obligation was in each instance absolved in due time.

For the respondent it is contended that payment should be made for
each entire month in the calendar on or before the tenth day of the
succeeding month, and this we think is clearly the mode of computation
intended in section 88 of the Code of Civil Procedure, as amended. This
we consider true whether reference is had to the English expression “on
or before the tenth day of each calendar month,” used in Acts Nos. 1778
and 2588, or to the Spanish expression “el dia diez de cada mes civil, o antes,”
used in the Spanish text. The word “tenth,” used in connection with
“month,” indubitable indentifies the day of payment as the tenth in
sequence of the days of which the respective calendar months are
comprised. The English text of the law does not admit of doubt upon
this point; and if the Spanish were in any degree ambiguous, its
meaning would be determined by the English.

We may add that section 13 of the Administrative Code (1917)
declares that the term “month” shall be understood to refer to calendar
month; and this undoubtedly changes article 7 of the Civil Code in so
far as the latter fixes the length of a month at thirty days.

From what has been said it is apparent that the payment effected on
August 11, 1921, was one day late. The action of the respondent judge
in awarding immediate execution was therefore in conformity with law.
The demurrer must accordingly be sustained, and unless within five days
after notification hereof the petitioner shall so amend his petition as
to show a sufficient cause of action, an order absolute will be
entered, dismissing the same, with costs. So ordered.

Mapa, C. J., Araullo, Avancena, and Villamor, JJ., concur.