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EN BANC

G.R. No. L-2120 March 9, 1949

JOSE ALVAREZ ET AL., Petitioner, vs. FIDEL IBA�EZ, Judge of the Court of First Instance of Laguna and COLEGIO DE SAN JOSE respondents.

Juan S. Rustia for petitioners.
Reyes & Castañeda and Jose M. Luison for respondents.
Solicitor General Roberto A. Gianzon for Government.
Calanog & Alafriz for the receiver.

PERFECTO, J.:

Petitioners pray that the Court of First Instance of Laguna be declared without jurisdiction to take cognizance of civil case No. 9039 entitled "Colegio de San Jose versus Jose H. Guevara et al.," and that the orders issue in said case on December 10, 1947, January 22, 1948 and February 133, 1948 be set aside.chanroblesvirtualawlibrary chanrobles virtual law library

The complaint in said case was filed in December 10, 1947 and said date the lower court appointed Segundo C. Mastrili as receiver.chanroblesvirtualawlibrary chanrobles virtual law library

According to petitioner said receive with the assistance of MP soldier compelled petitioner too deliver to him their crops of palay and that petitioner filed on December 22, 1947, an urgent petition asking for the reconsideration of the appointment of the receiver butt that said motion has never been acted upon. On January 21, 1948, petition seeking resolution of their motion but the lower court failed to resolve said motion.chanroblesvirtualawlibrary chanrobles virtual law library

It is also alleged that on December 31, 1947, petitioner moved for the dismissal of the complaint of the complaint but their motion was denied on January 22, 1984. Then they moved for the reconsideration of this order of denied but their motion for reconsideration was also denied on February 13, 1918.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner contend that the order of December 10, 1947, appointing Segundo C. Mastrili as receiver and the orders of denied of January 22 and February 13, 1948 are illegal and null and void for the following reason:chanrobles virtual law library

(a) Because the order appointing the receiver was issued without complying with the requirement of the law and in a complaint where no specific land, improvement or crops of palay are litigated much less concerning the crops of palay in the lands occupied by petitioner as owner and that said complaint has the effect of depriving petitioner of the possession of said lands.chanroblesvirtualawlibrary chanrobles virtual law library

(b) The lower court has no jurisdiction over the subject matter because the money claimed in the complaint is covered by the law on moratorium; the judgment in civil case No. 6663 intended to be revived has prescribed; there is no jurisdiction or positive allegation in the complaint to the effect that petitioner are responsible for the payment of said judgment the whole judgment in said case was transferred by the Colegio de San Jose to the Commonwealth of the Philippines on September 27, 1939; the Colegio de San Jose who appears as plaintiff is non-existing having been abolished by the decree of expulsion of Jesuits in 1767; and petitioners were parties in the civil case No. 6663.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner further allege that the receiver has deprived petitioner of their properties to the extent of reducing them to complete destitution and misery.chanroblesvirtualawlibrary chanrobles virtual law library

Respondents answered that the lower court has jurisdiction over the subject matter controverted in civil case No. 9039; that petitioner are either parties, privies or successors in interest agents or representatives tenants or aparceros of the parties-plaintiff in civil case No. 6663 whose judgment is intended to be revived; and that the petitioner for receivership fall under the cases enumerated in section 1, of Rules 61, Rules of court because petitioner are insolvent and have refused for several year to the satisfaction of the judgment sought to be revived and that the appointment of the receiver is authorized by section 3 of said Rule 61.chanroblesvirtualawlibrary chanrobles virtual law library

Respondent allege also that the ownership of the Colegio de San Jose over the property in question is recognized by contracts ratified by law and confirmed by court of justice; sought to be enforced were never sold or transferred to the Government: that right to enforce said judgment is not covered by the moratorium and has not prescribed; that the lower court did not act with grave abuse of discretion is not resolving petitioner petition for reconsideration of the order appointing a receiver because a petition for prohibition with preliminary injunction involving the same issues raised in the petitioner was presented before the Supreme Court on December 24, 1947, on behalf of the other defendant in civil case No. 9039, and the respondent judge had no other alternative than to issue the order dated January 9, 1948 suspending any action on the aforesaid petitioner for reconsideration until the Supreme Court shall have decided said petitioner for prohibition.chanroblesvirtualawlibrary chanrobles virtual law library

The issue in the present case are substantially the same as those in the case of Ramirez vs. Ibañez (83 Phil., 97), wherein it was decided by majority decision to dismiss the case on the ground that the lower court should first be given the chance of deciding the issue pending therein before petitioner could be allowed to seek remedy from the Supreme Court.chanroblesvirtualawlibrary chanrobles virtual law library

In the present case the lower court did not act upon petitioner's motion for reconsideration of the order appointing Segundo C. Mastrili as receiver because of the filling of the petitioner for prohibition in said case (Ramirez vs. Ibañez, ¹ ) The lower court should be given the chance of deciding said question before petitioners can appear before us to raise the same question.chanroblesvirtualawlibrary chanrobles virtual law library

As regards the orders the lower court of January 22, and February 13, 1948, because of which petitioners failed to secure the dismissal of the complaint in civil case No. 9039, the proper remedy for petitioner is by ordinary appeal in due time.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner dismissed. With the dismissal of the petition is not necessary to make any pronouncement on the incidental matter raised by petitioner.chanroblesvirtualawlibrary chanrobles virtual law library

The foregoing is the decision of the majority from which the writer dissents.chanroblesvirtualawlibrary chanrobles virtual law library

The writer, consistent with his dissent in L-1878, ² is of opinion that pending the decision on the merits civil case No. 9039, the status quo should be maintained to the effect that petitioner possession of the lands they hold of palay because receivership does not have the purpose of disturbing a legal status quo but rather to preserve it.chanroblesvirtualawlibrary chanrobles virtual law library

Moran, C.J. Pablo, Bengzon and Tuason, JJ., concur.
Paras, J., concur in the result.

Separate Opinions chanrobles virtual law library

FERIA, J., concurring:chanrobles virtual law library

I concur in the dismissal of the petition.

¹ 83 Phil., 96.chanroblesvirtualawlibrary chanrobles virtual law library

² 83, Phil., 97.