[ G.R. No. L-2525. April 26, 1949 ] 83 Phil. 382
[ G.R. No. L-2525. April 26, 1949 ]
MARY BURKE DESBARATS AND ANTONIO T. CARRASCOSO, JR., THE LATTER IN HIS CAPACITY AS EXECUTOR OF THE ESTATE OF W.J. BURKE, DECEASED, PLAINTIFF AND APPELLANTS VS. TOMAS DE VERA, DEFENDANT AND APPELLANT. R E S O L U T I O N
PARAS, J.:
In an ejectment case instituted in the Municipal Court of Manila, judgment was rendered on December.18, 1975 ordering the defendant to vacate the premises involved in the complaint, namely, the if story building known as the ‘Burke Building," situated at No. 133 Escolta, City of Manila; to restore the possession thereof to the plaintiffs; to “pay the plaintiffs the sum of P110,000, representing the balance of rentals from June 1 to November 30, 1947, plus legal interest, thereon from December 10, 1947, until delivery of the premises .in question to the plaintiffs, at the rate of P19,000 a month; and to pay the costs of the suit.
Upon appeal by the defendant, the Court of First Instance of Manila rendered on July 12, 1948, a decision ordering the defendant to surrender the possession of the building to the plaintiffs, and to pay to the latter the rentals from June 1, 1947, until delivery of the premises, at the rate of P10,400 a month, less the amounts collected or to be collected by the plaintiffs from the sublessees, without special pronouncement as to costs.
On July 30, 1948, the defendant addressed a letter to plaintiff Carrascoso worded as follows? “In accordance with the decision of the Court of First Instance of Manila, dated July 12, 1948, I am hereby mailing a formal delivery to-you of the Burke Building as of July 31, 1948, retaining meanwhile, pending final disposition of your appeal to the Supreme Court, a small portion thereof occupied. by my real estate office and the ‘Counterkool’ , the latter at the instance of its owner.” In response, plaintiff Carrascoso stated that the plaintiffs would take over the building a.nd that “As regards the portion of the building occupied by you, I regret to tell you that the owners of the building will need the space occupied by you, and for this reason I request that you immediately vacate the same.” (Letter of Atty. Antonio T. Carrascoso, Jr., dated July 31, 1948)
The plaintiffs appealed, from.the decision of the Court of “First Instance in so far as it reduces the rental to be paid by the defendant from P19,000 to P10,000 monthly. The defendant also appealed,“particularly with respect to certain incidental matters involved in the cane.” The records on appeal of both the plaintiffs and the defendant were approved by the lower court on September 24, 1948. Even so. said. court, on September 24, 1948, issued an order allowing the defendant to retain the aforesaid portion of the “Burke Building” at a monthly rental of P2,000.
The case is now before us pending appeal. We are, however, called upon for the present to resolve the motion filed by the plaintiffs, praying for the immediate execution of the part of the appealed judgment ordering the defendant to vacate the building in question in its entirety. Our conclusion Is that said motion is well founded.
The decisive principle is not new and has already been embodied in the case of Verches vs. Rios, 48 Phil, 16, in which this Court, quoting from De Egana’s Succession, 18 La. Ann. 59, pointed out “that the party who voluntarily executor., either partially or in toto, the execution of that judgment, is not permitted to appeal from it,” with the observation, furthermore, that “owing to the similarity of the jurisprudence of that State with the law in tho Philippine Islands, the Lousiana decisions are important and should have great weight in thin Court.”
It should be noted that the defendant had delivered the greater portion of the property expressly “in accordance with the decision of the Court of First Instance of Manila, dated July 12, 1948, " thereby plainly acquiescing in said decision at least in so far as it orders him to surrender the possession of the building to the plaintiffs. The judgment for possession is certainly indivisible and it cannot be correct or wrong as to a part and correct or wrong as to the other part. It stands to reason that the delivery by the defendant of the greater portion of the “Burke Building” has estopped him from assailing the property of the appealed judgment as regards the matter of possession.
The defendant, however, invokes the order of the Court of First Instance issued on September 24, 1948, allowing him to occupy tho portion he is actually holding, at a rental of P2,000. Said order is conspicuously null and void, having been entered after the records on appeal held been, approved and, accordingly, after the Court of.First Instance bad lost jurisdiction over the case, (Section 9, Rule of Court No. 41) It cannot of course be pretended that said order was merely for the protection and preservation, of the rights of the parties which do not involve any matter litigated by the appeal. The Court Is unanimous on this point. But it is contended by the dissenting Justice that the order in question cannot be set aside because the lower court is not a party herein, and that the proper remedy should, have been a special civil action for certiorari. This contention would be meritorious if the main case is not before us on appeal, and if said order is not void ab initio. Certiorari nay be availed of when there is no “plain, speedy, and adequate remedy in the ordinary course of law” (section 1, Rule of Court No. 67); and the procedure adopted by the plaintiffs certainly falls within the category of a plain, speedy, and adequate remedy, not to mention the fact that it has thereby avoided multiplicity of suits. Moreover, a void order nay be attacked collaterally, (Gomez vs. Concepcion, 47 Phil. 717; Caluag et al, vs. Pecson, 82 Phil. 8.) In the latter case, Mr. Justice Feria, speaking for the Court, held that “a wrong, or for that matter a correct decision is void, and may be set aside either directly or collaterally, where the court exceeds its jurisdiction and power in rendering it.”
The defendant argues that the plaintiffs cannot now rely on the partial delivery of the premises in question, because they had voluntarily accepted, the same. To this it is sufficient to answer that the acceptance was made with the protest and demand of Atty, Carrascoso “that you immediately vacate the Same” (referring to the portion retained, by the “defendant).
The equitable aspect of the situation also inclines on the side of the plaintiffs. It appears that the contract of lease in favor of the defendant admittedly expired on December 31, 1948; and there seems to he absolutely no reason for conceding to the defendant any extension, especially in view of the circumstance that he had delivered the greater portion of the building “in accordance with the decision of the Court of First Instance,” something obviously inconsistent with any pretense that the defendant would seek in this appeal an extension of his lease, which covers the entire “Burke Building.” In his notice of appeal, the defendant furthermore particularized “certain incidental matters involved in the case,” It is needless to state that his ejectment from, the building, to which he had already voluntarily conformed, is of course not a more incidental matter.
Without deciding other issues that may properly be raised in the present appeal as well by the plaintiffs as by the defendant, we hereby grant the plaintiffs’ motion for immediate execution of the appealed judgment of the Court of First Instance of Manila, dated July 12, 1948, In so far only as it orders the defendant to surrender to the plaintiffs the possession of the “Burke Building” in its entirety. So ordered.
Pablo, Perfecto, Tuason, Montemayor, and Reyes, JJ., concur.
Moran, C.J., concur in the result.