[ G.R. No. L-1122. September 17, 1947 ] 79 Phil. 261
[ G.R. No. L-1122. September 17, 1947 ]
MODESTO SANTOS, PETITIONER, VS. POTENCIANO PECSON, JUDGE OF THE COURT OF FIRST INSTANCE OF BULACAN, PABLO RAMOS AND AURELIA SANCHEZ, RESPONDENTS. D E C I S I O N
TUASON, J.:
This is a petition for certiorari to review an order of the Court of First Instance of Bulacan, sustaining a motion to exclude from the complaint two of various defendants on the ground that the complaint does not allege a cause of action against them. We assume that the plaintiff elects to stand on his complaint and that the court in due course will enter judgment dismissing it with reference to the two defendants ordered dropped.
Certiorari is not the appropriate remedy to set aside an order of dismissal. Such order being undeniably within the jurisdiction of the court to make, the remedy is by appeal. (Rule 41 of the Rules of Court.) Whether the order in question is interlocutory or final is immaterial so far as availability of the writ of certiorari is concerned. The only difference is that if it is interlocutory the appeal would have to wait until final judgment is rendered; if it is final it is appealable immediately.
Mere possible delay in the perfection of an appeal and in securing a decision from the appellate court is no justification for departing from the prescribed procedure. Delay might be a good ground for invoking the extraordinary remedy in cases where there was lack or excess of jurisdiction or abuse of discretion and the delay would work injustice to the complaining party or make the appeal ineffectual to redress the error; where, for instance, execution had been issued, a receiver had been appointed, or attachment had been levied, and there was no time to waste. No irreparable damage is foreseen in the present case. Although appeal may be less speedy it affords adequate and complete remedy.
For the convenience of the parties and to avoid further delay, it may be well to pass judgment on the nature of the order under consideration; whether it is interlocutory or final so as to permit an appeal before the case is disposed of as to the rest of the defendants. This depends upon the relation of the order to the entire proceeding.
Briefly, Pablo Ramos and Aurelia Sanchez, man and wife, bought from the surviving children of Simplicio Santos, deceased, a fishpond which, according to Modesto Santos, present petitioner and Simplicio Santos’ brother, he is holding under a verbal contract of indefinite lease with his deceased kin, with option to purchase the property in the event the owner decided to part with it. After the sale, Modesto Santos brought suit to declare it null and void, to have the vendors and vendees allow him to exercise his alleged option to buy the fishpond, for which he offered P120,000, or to compel them to respect the contract of lease and to pay damages. The parties the court would have eliminated are the purchasers.
There can be no serious question that with respect to these two defendants the order is final; for unless the order is modified or reversed, they will be forever out of the case.
Some American courts have held that a judgment, order or decree to be appealable must be final as to all the parties in the proceeding. (4 C.J.S., 199.) In some jurisdictions, however, there are decisions to the contrary. (Ibid., 202.) This court seems to lean toward the latter rule in Macapinlac vs. Gutierrez Repide (43 Phil., 770).
Be that as it may, in the particular circumstances of this case, the order under review should be held appealable without waiting until judgment is handed down with reference to the other defendants. The buyers of the questioned land have a vital interest in the annulment of the sale and other reliefs sought by the plaintiff, to the point of making trial and decision on the merits of the case impossible before the fate of the order for their exclusion is known. The brief statement of the case we have made makes obvious the indispensability of a single trial unless the purchasers have been definitely adjudged free from liability.
The petition is denied without costs.
Paras, Pablo, Hilado, Perfecto, Bengzon, and Hontiveros, JJ., concur.