TAN CHU CHAY, JAS.
AS JUDGE OF THE
COURT OF FIRST INSTANCE
OF PANGASINAN AND
AS SHERIFF OF SAID
D E C I S I
WILLARD, J :
an original action
of certiorari in this court. The defendants demurred to the complaint
the case is now before us for resolution of this demurrer.
It appears from the
Complaint that judgment was entered in the Court of First Instance of
Province of Pangasinan in favor of the defendant Tan Chu Chay and
the plaintiff Isabelo Artacho, for the sum of P3,430, With interest and
costs. This judgment was afterwards affirmed by this court, the case
to the Court of First Instance, and execution issued upon the judgment
and delivered to the defendant, Antonio Sison, sheriff of the Province
of Pangasinan, for service. The sheriff made a demand upon the
Artacho for the payment of the amount of the judgment, which payment
refused by the plaintiff on the ground, as alleged in the complaint,
prior to such demand, the debt due from him to the defendant Tan Chu
had been legally attached by the sheriff of Manila in a suit brought by
a creditor of Tan Chu Chay against the latter in the Court of First
of Manila. The defendant Sison reported to the Court of First Instance
of Pangasinan the answer of the plaintiff, Artacho, and the judge
one of the defendants, thereupon ordered the issue of a second
upon the judgment hereinbefore referred to.
The plaintiff then
commenced this proceeding in this Court and secured a temporary
restraining the levy of the execution.
It is alleged in the
Complaint that, in ordering the issue of a second execution, the
exceeded his jurisdiction and that such Order was absolutely void. This
contention cannot be sustained. The Court of Pangasinan had
of the case of Tan Chu Chay against the plaintiff Artacho, jurisdiction
both of the parties and of the subject-matter, and the mere fact that
creditor of Tan Chu Chay had attached the debt due from Artacho to the
former did not oust that court from its jurisdiction to proceed with
case. [See among other cases decided by this court: Rubert & Guamis
vs. Sweeney, 4 Phil. Rep. 473; Somes vs. Crossfield, 8 Phil. Rep., 284;
and Yambert vs. McMicking, 10 Phil. Rep., 95].
Whether in order to
prevent a double payment, the plaintiff can maintain an action in the
of First Instance under Section 120 of the Code of Civil Procedure, or
whether he can accomplish that result by some other proceeding in that
Court, it is not for us now to decide, it is sufficient to say that the
present action of certiorari can not be maintained.
The demurrer is
and the plaintiff is given five days in which to amend his complaint.
no such amendment is presented within that time, the clerk, without any
further order of this Court, will enter a final judgment for the
with costs. So ordered.
Torres, Mapa, Carson and Tracey, JJ., concur.