IN RE INTESTATE ESTATE OF AUGUSTO H. TUASON ET AL., PETITIONERS, VS. ANTONIO MA. BARRETTO Y ROCHA ET AL., RESPONDENTS.

This is a petition for a writ of
certiorari and subsidiarily for a writ of mandamus. The writ of
certiorari is sought for this court to restrain the Court of First
Instance of Manila, which has cognizance of civil case No. 24803
relative to the mayorazgo Tuason, from proceeding with the execution
of some interlocutory orders, praying, in case this court deemed such a
course as not in accordance with law, for a writ of mandamus to compel
said court to approve and certify the bill of exceptions filed by the
petitioners in said case.

The facts are as follows: The
last time this case came here on appeal, this court, in its decision
rendered therein, ordered the trial court to take the necessary steps
toward the adjudication and distribution among all the interested
parties of their respective participations for the purpose of
definitely terminating this mayorazgo suit.^[1]

In order to carry out and execute the decision of this court
relative to the distribution of the income, the Court of First Instance
of Manila, presided over by Judge Abeto, on December 7, 1934; ordered
the Bank of the Philippine Islands, the receiver appointed in this
case, to make a computation of the respective participations of all the
interested parties. In compliance therewith, the bank, on August 30,
1935, submitted its first report containing the lineal as well as the
collateral heirs. The defendants made some objections to said report
but the court approved it with some alterations in its order of October
21, 1935. According to this order, “the defendants owe the plaintiffs
and the intervenors the sum of P317,993.07 representing their
participations in the income and fruits of the properties of the
mayorazgo, corresponding to the period from 1904 to 1922 * * *” and
“that the defendants had made a partial liquidation from the year 1922,
which was still unfinished.” “In said partial liquidation the
defendants, as they themselves admit, owe the plaintiffs and the
intervenors the sum of P77,544.17 representing the income and fruits of
one-fifth of the mayorazgo from 1923 to 1925.” The above-stated sums,
added together, amount to P395,537.24 which, in addition to the sum of
P200,000 in the hands of the receiver bank, makes a total of
P595,537.24. In “said order of October 21, 1935, the court directed
that P228,661.45 of the above-stated amount be distributed N among the
lineal heirs excluding the defendants who had purchased the
participations of some of the plaintiffs and intervenors amounting to
P143,549.30. In the same order of October 21, 1935, the court required
the defendants to deposit the sum of P223,326.49 in the Bank of the
Philippine Islands within 15 days for the protection of the collateral
heirs, which sum would be kept by the receiver bank subject to the
order of the court. In the same order the defendants were warned that
if they failed to deposit said amount within the above-stated period, a
writ of execution for said amount would be issued against their
respective participations.

On November 9, 1935, the bank submitted its second report in
compliance with the above-stated order of October 21, 1935, stating
therein and in the statement attached thereto the manner of
distributing the sum of P228,665.26 among the plaintiffs and
intervenors. After the approval of said report by the court’s order of
November 11, 1935, the sum of P228,665.26 was distributed, as ordered,
among the lineal heirs.

On March 12, 1936, the court issued an order declaring that 3/8 of
one-fifth of the mayorazgo must be distributed among the collateral
heirs, not on the basis of each great-great-grandchild but of each
great-grandchild, and directed the bank to submit a report stating the
quota corresponding to each of the collateral heirs. Alfonso Rocha, one
of the plaintiffs, excepted to this order of March 12th.

On June 1, 1936, the bank, in compliance with the court’s order of
March 12, 1936, submitted its third report specifying the
participations of each of the collateral heirs. This report was
approved without any objection by the court’s order of June 22, 1936,
directing that “the distribution of funds corresponding to the
collateral line must be made in accordance with said report,”

On March 12, 1936, intervenor Quintin Montes filed a motion praying
that the defendants be ordered to deposit the sum of P223,326.49 to be
distributed among the collateral heirs, as directed in the order of
October 21, 1935. The defendants objected thereto but the court, in its
order of June 17, 1936, required the defendants to deposit the sum of
P133,690.67 to enable the receiver to comply with the order of March
12, 1936, relative to the distribution of the funds corresponding to
the collateral line. It should be noted that the sum of P223,326.49,
which the court had ordered the defendants to deposit in its order of
October 21, 1935, was reduced to P133,690.67 in accordance with the
last order of June 17, 1936, because the participations of the
defendants amounting to P45,798.86 and those of the intervenors Legarda
totalling P43,840.71 were deducted therefrom. Said intervenors agreed
with the defendants to collect their participations extrajudicially
from the latter, all of which appear in the third report of the bank.

The defendants excepted to the order of June 17, 1936, and on the
27th of said month they filed a motion for reconsideration on the
ground that as the plaintiff Alfonso Rocha excepted to the
above-mentioned order, it was premature, according to them, to order
the deposit of the sum of P133,690.67. In said motion the defendants
prayed that should the order of June 17th (June 6th, according to them)
not be reconsidered, they be given a period of 10 days within which to
file a liquidation which they had asked of the bank.

On July 10, 1936, the defendants asked for a period of 30 days to
file the aforesaid liquidation of the bank. On July 24, 1936, Judge
Mapa denied the motion of June 27th and the petition of July 10th and
again ordered the defendants to deposit the sum of P133,690.67 within 3
days. On July 30, 1936, the defendants filed a motion for
reconsideration of the order of July 24th and attempted to show that
they should deposit only P63,742.86. To obtain the result, however, the
defendants included in the income ordered by the court to be
distributed, that is, the income from 1904 to 1922, and from 1923 to
1925, other income corresponding to the periods from 1926 to 1929 and
from October, 1929, to June, 1936, which had not been the subject
matter of the order of July 24th or that of June 17th, and hence was
completely immaterial to the question then under consideration. The
plaintiffs and the intervenors objected thereto and Judge Mapa, in his
order of August 24, 1936, denied the defendants’ motion for
reconsideration of July 30th and ordered them to comply with the order
of July 24th within three days, warning them that otherwise the court
would order the attachment of their property to realize the amount
referred to in said order.

The defendants received notice of said order on August 28, 1936,
and on September 2, 1936, they excepted to the order of August 24th and
announced their intention to appeal from the orders of July 24, and
August 24, 1936.

They were granted an extension up to September 29, 1936, and on the
19th of said month (September, 1936), they filed the bill of exceptions.

Pending the approval of the bill of exceptions, intervenor Maga and
others, on September 30, 1936, filed a motion praying for the issuance
of a writ of execution of the order of August 24, 1936. On October 3d,
the defendants filed opposition to this motion and the court, on
October 17, 1936, ordered the issuance of a writ of execution of the
order of June 17, 1936.

On October 22d the defendants excepted thereto and filed a motion for reconsideration of the order of October 17th.

On October 27, 1936, the court disapproved the bill of exceptions.

On November 2, 1936, the court denied the motion for reconsideration of
the order of October 17, 1936, and on November 3, 1936, it ordered the
issuance of a writ of execution against the properties of Augusto H.
Tuason and other persons named in the order.

On November 3d the defendants filed a motion for reconsideration of
the order disapproving the bill of exceptions, which motion was denied
by the court on November 7th.

From the foregoing statement of facts, it is inferred that the
respondent judge acted neither arbitrarily nor in excess of his
jurisdiction in issuing the order of November 3, 1936. Said order
decreed the issuance of a writ of execution against the persons named
therein for the payment of the sum of P133,690.67, the deposit of which
had been ordered on June 17th of said year but was not complied with by
the defendants for no reason whatsoever. It will be seen that the order
in question was issued on November 3, 1936, after the court had
disapproved the defendants’ bill of exceptions on October 27, 1936. It
is alleged that said order was issued in excess of jurisdiction for the
purpose of carrying out an interlocutory order and that it includes as
parties liable persons who had not been joined as defendants and who
are not heirs or successors in interest of any of the original
defendants. These allegations are contrary to the true facts, because
the order of June 17, 1936, which the court ordered to be executed, was
not interlocutory but final and executory in character. As to the
persons named therein, they are either original defendants or heirs or
successors in interest of the original defendants. At any rate the
persons mentioned in said order, who were not original defendants, are
not represented by the attorneys for the defendants and therefore said
attorneys cannot institute this petition for a writ of certiorari in
their name.

It is also alleged that the court exceeded its jurisdiction in
making the defendants stated in the order of November 3d jointly and
severally liable for the payment of the amount sought to be realized in
said order instead of merely jointly liable therefor as they ought to
be. In fact the order of November 3d does not determine the extent of
the responsibility of said defendants in the payment of the sum of
P133,690.67 and, therefore, the alleged abuse of jurisdiction
attributed to the court does not exist.

With respect to the writ of mandamus applied for, it appears that
the disapproval of the bill of exceptions was perfectly justified
inasmuch as the defendants appealed only from the orders of July 24 and
August 24, 1936, which were interlocutory in nature, being mere orders
denying motions for reconsideration and, as such, were not appealable
to this court (sec. 123, Code of Civil Procedure; Averia vs. Reboldera,
10 Phil., 316; Insular Government vs. Roman Catholic Bishop of Nueva
Segovia, 17 Phil., 487). While it is true that the above-stated orders
were subject to exception, it is because they are related to another
final order, which is that of June 17, 1936. It is said order of June
17,1936, that was really appealable because it finally decides once and
for all the incident relative to the deposit of the sum of P133,690.67
required to be made by the defendants in said order for the purpose of
carrying out the distribution of income among the collateral heirs as
ordered on March 12, 1936. Said order put to an end the incidental
question of the deposit decreed for the first time on October 21, 1935,
but the defendants failed to appeal therefrom.

On the other hand, if the bill of exceptions were considered as
having been filed for the purpose of perfecting an appeal from the
order of June 17, 1936, it would then appear that it was filed outside
the statutory period because the two motions of June 27th and July 30th
seeking the reconsideration of the orders of June 17th and July 24th,
respectively, did not interrupt the running of the period for
perfecting the appeal for the reason that they could not be considered
as motions for a new trial, not being based upon any of the grounds
enumerated in section 145 of the Code of Civil Procedure, as amended by
Act No. 2347. Furthermore, they did not ask for the annulment of the
order of June 17th and for a new trial (Pascua vs. Ocampo and Aguilar,
59 Phil., 48; Blouse vs. Moreno and Garcia, 60 Phil., 741).

It is claimed that the bill of exceptions was filed within the
extension of time granted by the court. Said extension, however, Was
erroneously granted because when the defendants asked for it on
September 2, 1936, the period within which to appeal from the order of
June 17th, of which said defendants were notified on the 19th of the
same month had long elapsed.

Therefore mandamus does not lie to compel the court to approve and
certify the bill of exceptions filed by the defendants-petitioners.

The petition is denied in toto, with costs to the petitioners. So ordered.

Avancena, C. J., Villa-Real, Abad Santos, Imperial, Diaz, and Laurel, JJ., concur.

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^[1] 59 Phil., 845, 893.