JOSE M. GONZALEZ, PLAINTIFF, VS. PERCY M. MOIR, JUDGE OF FIRST INSTANCE, DEFENDANT.

This is an action of certiorari, the object of which is to vacate an order
for the appointment of a receiver of a parcel of land sold under execution, and
the dissolution of a preliminary injunction against the judgment debtor
restraining him from entering thereon.

On April 8, 1912, two judgments were rendered by the respondent judge against
the herein plaintiff. Judgment in a suit on a mortgage in favor of the
mortgagee, Ezequiel Ruiz, was declared a preferred credit. Judgment in an action
for debt was rendered in favor of Cecilio Imaz. In this suit Ezequiel Ruiz was
an intervener. The first was appealed to the Supreme Court and is still pending.
The judgment in the second case became final and execution issued thereon on
April 19, 1913, Under this execution the realty in question was sold at a
sheriff’s sale, subject to the payment of the mortgage credit of Ruiz and was
purchased by Imaz, the judgment creditor. On July 8,1913, on petition of Imaz,
the court made the order for the appointment of a receiver and issued the
preliminary injunction complained of in this certiorari action. Both the order
appointing the receiver and the one directing the preliminary injunction to
issue were made upon the petition of Imaz ex parte, without giving the
herein plaintiff an opportunity to be heard. Upon being informed of the issuance
of these orders the herein plaintiff commenced this action in the Supreme Court
without first having sought the annulment or a modification of these orders in
the court out of which they were issued, notwithstanding the fact that the
respondent judge has been in the district from the date of the issuance of said
orders up to the present time.

In view of the fact that the orders complained of in this action were issued
ex parte, the question arises whether it is not the better practice to
require the party seeking to have such orders annulled or modified to present
the matter to the court out of which the orders were issued before seeking his
remedy in this court.

In the case of Herrera vs. Barretto and Joaquin (25 Phil. Rep., 245,
272), which was an original action of certiorari, this court said:

“We cannot leave the case without suggesting that the applicant herein,
before coming to this court, should, as the better practice, have made the
proper application to the Court of First Instance for a dissolution or
modification of the mandatory injunction, and thereby given that court an
opportunity after full argument of counsel and citation of authorities, to pass
upon the question of his power and jurisdiction, and even, the correctness and
propriety of his action, should power and jurisdiction be found by the court to
exist. Questions which Courts of First Instance are required by law to decide
should not be summarily taken from them and presented to this court without
first giving them an opportunity of deliberately passing on such questions
themselves. The most natural and proper thing to do when such court, in the
judgment of one of the parties, has issued an injunction erroneously, is
immediately to call the attention of that court to its supposed error and ask
for its correction. The strongest reasons of policy and courtesy, if not actual
legal right itself, require such procedure; and we discourage all attempts to
come to this court upon questions which a court below is entitled to decide
without first invoking its judgment thereon. There are special reasons for
following this course in cases where the court has acted ex
parte.“

The orders complained of having been issued ex parte, the petitioner Gonzalez
should have called the attention of the respondent judge to the supposed errors
before coming to this court. Let judgment be entered dismissing this petition,
with costs against the petitioner.

Arellano, C. J., Carson, Moreland, and Araullo, JJ.,
concur.