G.R. No. L-16598 - Francisco Jose, et al. vs. Jose C. Zulueta, et al.

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-16598             May 31, 1961

HON. FRANCISCO JOSE, in his capacity as former Judge, Court of First Instance of Manila, GEORGE EDWARD KOSTER, INC., represented by Mr. J. A. Wolfson, Liquidator, MACARIO OFILADA, as Sheriff of the City of Manila, and EXCHANGE INVESTMENT, LTD.,petitioners,
vs.
JOSE C. ZULUETA, and COURT OF APPEALS,respondents.

Cornelio Antiquera for petitioners.
Lorenzo F. Miravite for respondents.

BARRERA,J.:

This is a petition to review bycertiorarithe decision of the Court of Appeals (in CA-G. R. No. 24738-R), setting aside the alias writ of execution issued by the Court of First Instance of Manila in Civil Case No. 11927 as null and void, and making permanent the preliminary injunction issued therein by the appellate court.

Pursuant to a decision duly rendered by the Court of First Instance of Manila in Civil Case No. 11927 and affirmed by the Supreme Court,¹therein defendant Jose C. Zulueta was ordered to pay therein plaintiff George Edward Koster, Inc. "the sum of P46,093.77 with interest at the rate of 6% per annum from September 27, 1949, with respect to the sum of P30,000.00; and from December 8, 1949, as to the sum of P16,093.77, until the entire amount is fully paid." Said decision having become final and executory, a writ of execution was issued on December 28, 1956.

On April 27, 1957, Zulueta paid the plaintiff corporation petition, then under liquidation, J. A. Wolfson, liquidator, the sum of P46,093.77, for which the corporation's counsel issued a receipt in the following tenor:

As a result, the Sheriff returned the writ of execution with the statement that it has been partially satisfied.

Subsequently, George E. Koster Inc., transferred for a consideration its right to the unpaid balance of the judgment (representing the interest) against Zulueta, to the Exchange Investment, Ltd. On November 16, 1958, Exchange Investment, Ltd. was substituted for the judgment creditor George E. Koster Inc. Thereafter, the transferee Exchange Investment, Ltd. petitioned the courta quofor the issuance of analiaswrit of execution for the collection of the "unsatisfied part of the judgment". Defendant Zulueta filed an opposition to the petition claiming that there was condonation of the interest in consideration of his having helped in obtaining dollar allocations from the Central Bank in favor of American Builders, Inc. in which George E. Koster was personally interested together with the one Mr. Lewis, and that there having been no reservation made in the receipt at the time of payment of the principal, the in interest is presumed to have been paid in accordance with Article 1176 of the new Civil Code. Petitioner filed an opposition denying the fact of remission and arguing that neither the lawyer, who had no special authority, nor Koster personally, as mere stockholder of the corporation, could compromise the judgment in favor of the corporation by remitting the interest. After due hearing, the court, in a reasoned order dated January 16, 1959, sustained the contention of petitioner Exchange Investments, Ltd. and issued thealiaswrit of execution. Zulueta filed a motion for reconsideration which was denied in the court's order of March 12, 1959. Copy thereof was served on said defendant onMarch 17, 1959.

On April 18, 1959, and after the Sheriff of Manila in properties had already placed under garnishment certain properties belonging to the defendant, the latter filed in the Court of Appeals an original petition forcertiorariand secured from said court a writ of preliminary injunction enjoining the City Sheriff to refrain from enforcing the afore-mentionedaliaswrit of execution.

After due hearing on the matter, the Court of Appeals rendered judgment dated July 30, 1959, holding that there was condonation of the interest payable by Zulueta effected prior to transfer of G. E. Koster Inc.'s interest to the Exchange Investments, Ltd., and that the trial court, therefore, gravely erred in issuing thealiaswrit of execution for the collection of said interest. Thealiaswrit of execution was set aside and the preliminary injunction made permanent. The petitioner now comes to us seeking to nullify the said decision of the Court of Appeals.

As urged by herein petitioners in their brief, the petition forcertiorarifiled by Jose C. Zulueta on April 18, 1959, or 32 days after he was notified of the court's denial of his motion for reconsideration of the order for the issuance of analiaswrit of execution, should have been dismissed, appeal therefrom being the proper remedy.

Rule 67 of the Rules of Court provides:

It is explicit thereunder, that for a writ ofcertiorarito issue, it must not only be shown that the board, tribunal or officer acted without or in excess of jurisdiction, or in grave abuse of discretion, but also that there is no appeal or other plain, speedy, and adequate remedy in the ordinary course of law available to the aggrieved party.

In the case at bar, it is not disputed that the trial court's order of January 16, 1959, directing the issuance of thealiaswrit of execution in question, as well as that of March 12, 1959, denying respondent Zulueta's motion for reconsideration of the aforesaid order, not being interlocutory, are appealable. No appeal from said orders, however, was interposed within the reglementary period, nor any reason given for such failure.²Under the circumstances, and the right to appeal having been lost for reasons not herein proved to be excusable, a petition forcertiorariis not proper.³

It is true, that in several instances, this Court allowed petitions forcertiorarinotwithstanding the existence of appeal therein. It may be pointed out, however, that in those instances the orders complained of were either issued in excess of or without jurisdiction,⁴or that, for certain special considerations, as public welfare of public policy,⁵his Court has decided to entertain the action. In other words, those are exceptional instances where the provisions of Section 1 of Rule 67 abovequoted are not strictly applied. The case at bar, certainly, does not fall within the exception.

It is also argued thatcertiorariis the appropriate remedy where, as in this case, execution had already been commenced, respondent citing Santos v. Pecson, 79 Phil. 261, wherein this Court said:

Evidently, the above pronouncement contemplates of instances where there is right to appeal, said right still existing and available, but would be inadequate to prevent the injury or wrong sought to be corrected. Hence, this Court declared thatcertiorarimay be allowed. This pronouncement cannot be invoked in the instant case, because not only is there no showing that appeal from the disputed orders would be inadequate and insufficient he right to such appeal, at the remedy, but also that, the right to such appeal, at the time the petition forcertiorariwas filed, has already be lost — through respondent's own fault negligence — and no longer available. Furthermore, the execution of the order (to enforce collection of the interest) was madeafterthe expiration of the period to appeal without such appeal having been perfected. Clearly, respondent lost his right to question the correctness of said order.

With the foregoing conclusion, there is no need for us to pass upon the other issues raised by petitioners.

WHEREFORE, the decision of the Court of Appeals is hereby reversed and set aside, and the orders of the courta quoof January 16, 1959 and March 12, 1959 affirmed, with costs against respondent Zulueta. So ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Dizon, De Leon and Natividad,concur.
Paredes J.,took no part.

Footnotes