G.R. No. 36564. February 09, 1933
THE MUNICIPAL GOVERNMENT OF APARRI, PLAINTIFF AND APPELLEE, VS. TOMASA VICTORINO VIUDA DE LIMGENCO ET AL., DEFENDANTS. TOMASA VICTORINO VIUDA DE LIMGENCO, DEFENDANT AND APPELLAN…
HULL, J.:
plaintiff-appellee and the intervening appellees obtained a judgment
against Lim Quingsy which became final by the action of this court on
December 2, 1929. On the 10th of January, 1930, the defendant-appellant
secured an attachment on the properties of Lim Quingsy, and final
judgment was rendered in her favor on July 16, 1930. Under the
instruction of the appellant the sheriff of the Province of Cagayan was
about to sell the attached properties of Lim Quingsy when the appellee
secured a temporary injunction which after hearing was made permanent.
The case is brought here on appeal and there is no real controversy
over the facts. The lower court held that as the appellees had a final
judgment prior to the attachment, they are entitled to preference over
the attaching creditor, and quoted article 1924, paragraph 3,
subsection of paragraph B, of the Civil Code, which reads:
“With respect to the other personal and real property of the debtor, the following credits shall be preferred:
* * * * * * *
“3. Credits which without a special privilege are evidenced by:
“B. A final judgment, should they have been the subject of litigation.
“These
credits shall have preference among themselves in the order of the
priority of dates of the instruments and of the judgments respectively.”
Even if appellees have a preference under article 1924 (see also Martinez vs. Holliday, Wise & Co., 1 Phil., 194; and Kuenzle & Streiff vs. Villanueva, 41 Phil., 611, 616, 624), it would apply to the funds in the hands of the sheriff (McMicking vs.
Lichauco, 27 Phil., 386), but would not give appellees the right to
prevent the sale of the properties of the judgment debtor to satisfy an
execution duly issued. Injunction not being the proper remedy, the
action of the Court of First Instance of Cagayan in issuing a temporary
injunction and then, after hearing, making the same permanent must be
vacated. Costs against appellees. So ordered.
Avanceña, C. J., Street, Villamor, Ostrand, Villa-Real, Abad Santos, Vickers, Imperial, and Butte, JJ., concur.