FELIPE PEREZ, PETITIONER, VS. EULOGIO P. REVILLA, JUDGE OF FIRST INSTANCE OF BULACAN, RESPONDENT.

OSTRAND, J.:


This case is now before the court upon a demurrer to the petition for a writ
of mandamus.

The petitioner alleges that in an action of forcible entry and unlawful
detainer, the justice of the peace of the town of Santa Maria de Pandi, Province
of Bulacan, on December 4, 1923, rendered a judgment in favor of the petitioner
herein in which the final and disposing clause reads as follows:

“In view of the foregoing, this court sentenced the defendants Mariano
Mendoza, Marcelino Clemente, Hilarion Geronimo and Josefa Francisco in default,
and in accordance with the provisions of section 54 of Act 190, judgment was
rendered in favor of the plaintiff Felipe Perez to recover the premises and that
he recover rents in the amount of six pesos (P6); also that he recover the costs
of this proceeding in the amount of seven pesos (P7), all against the defendants
jointly and severally.”

The petitioner further alleges that upon the rendition of the aforesaid
judgment the defendants in said forcible entry and detainer case perfected an
appeal therefrom to the Court of First Instance of Bulacan, paying to the
petitioner the sum of P6 as rents and accepted the following receipt:

“Received of Hilarion Geronimo, Marcelino Clemente and Josefa Francisco the
sum of six pesos (P6) as rents corresponding for the period October 12 to
December 11, 1923, for the use and occupation of the premises they are now
occupying and for which a judgment has been rendered in my favor by the justice
of the peace of the municipality of Sta. Maria, Province of Bulacan, in the
civil case No. 285, on December 3, 1923.

(Sgd.) “FELIPE PEREZ

“STA. MARIA, BULACAN, Dec. 7, 1923”

The petition and the exhibits made a part thereof further show that on
February 29, 1924, while the appealed case was still pending in the Court of
First Instance, the plaintiff Felipe Perez, the herein petitioner, presented a
motion to said court asking that the judgment of the justice of the peace be
executed on the ground that the defendants had failed to pay the reasonable
value of the use and occupation of the land detained as determined by the
judgment of said justice of the peace; that in a subsequent pleading the
petitioner insisted in his motion of February 29, 1924, and alleged
argumentatively that not only might the rate of the value of the use and
occupation of the land be inferred from the sentence, but that, in addition
thereto, the receipt accepted by the defendants for the P6 paid to him also
showed said value; that notwithstanding the plaintiff’s representations, the
Court of First Instance of Bulacan refused to receive evidence offered by the
petitioner and refused to order the execution of the judgment.

The petitioner therefore prays that a writ of mandamus issue ordering the
respondent judge to accept the evidence offered by the plaintiff in accordance
with section 88 of the Code of Civil Procedure and to issue a writ of execution
of the judgment of the court of the justice of the peace of Santa Maria de Pandi
on December 4, 1923.

To this petition the respondent demurs on the ground that the facts alleged
do not constitute a cause of action, and the demurrer must be sustained. Section
88 of the Code of Civil Procedure, as amended by Act No. 2588, provides that “*
* * during the pendency of the appeal in any case in which a stay of execution
of a judgment restoring possession has been allowed, it shall be the duty of the
defendant to pay to the plaintiff or into the Court of First Instance, at the
option of the defendant, the amount of rent due from time to time under the
contract, if any, as found by the judgment of the justice of the peace to exist,
or, in the absence of a contract, to pay to the plaintiff or into court, as
above provided, on or before the tenth day of each calendar month, the
reasonable value of the use and occupation of the premises for the preceding
month at the rate determined by the judgment. * * * Should the defendant fail to
make the payments above described from time to time during the pendency of the
appeal, the Court of First Instance, upon the motion of the plaintiff, of which
the defendant shall have notice, upon proof of the failure of the defendant to
make such payments, 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. * * ?”

There was no contract in the case in question and the judgment of the justice
of the peace contains nothing from which the value of the use and occupation of
the land may be determined with certainty. The petitioner argues that the
receipt accepted by the defendants in the case shows that the P6 paid by them
was the rental value of the land for two months. That may be so but has nothing
to do with the case. In order to entitle the plaintiff-appellee in an action of
forcible entry and detainer to payment of compensation for the value of the use
and occupation of the land in dispute pending the appeal in the Court of First
Instance, the rate of such value must be determined by the judgment itself, and
no other evidence is admissible for that purpose. Until the case has been tried
on its merits the Court of First Instance has no power to order what practically
amounts to an amendment or reformation of the judgment of the justice of the
peace.

The demurrer must accordingly be sustained and it being evident that the
petition suffers from defects not curable by amendment, an order absolute will
be entered dismissing the case, with costs. So ordered.

Johnson, Street, Malcolm, Villamor, and Romualdez, JJ.,
concur.