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GORGONIO
PANDES,
G. R. No. L-6666 May 12, 1954 -versus-HON. JOSE TEODORO, SR., JUDGE OF THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, JOSE AZCONA, EX-OFFICIO PROVINCIAL SHERIFF OF NEGROS OCCIDENTAL AND UY TIONG OH, Respondents. CONCEPCION, J :
On December 9, 1952, Uy Tiong Oh instituted in the Court of First Instance of Negros Occidental Civil Case No. 2562, against Gorgonio Pandes, for the recovery of a sum of money [Annex A]. Upon the posting of the corresponding bond, a writ of preliminary attachment was issued on motion of Uy Tiong Oh, "against the properties of the defendant not exempt from execution" [Annex B]. Then, the Provincial Sheriff issued a "Notice of Garnishment" [Annex C] upon "whatever right, interest and participation the defendant Gorgonio Pandes has or might have in" a certain "partnership between Uy Tiong Oh and Ester Pandes, the wife of the defendant, in connection with the Eden Theater of San Carlos, Negros Occidental." Thereafter, Gorgonio Pandes filed an "Answer to Notice of Garnishment of the Provincial Sheriff" [Annex D], praying that said garnishment "be stayed" upon the ground, among others, that said right, interest and participation "is involved in Civil Case No. 2371" of the same Court, entitled "Uy King Poe vs. Ester Pandes and Gorgonio Pandes." Admittedly, Uy King Poe, the plaintiff in said Case No. 2371, is the same Uy Tiong Oh, the plaintiff in case No. 2562. It would seem also that Gorgonio Pandes had never sought any court action on his aforesaid "answer". In due course, a Decision was subsequently rendered in favor of Uy Tiong Oh in case No. 2562. Said Decision having become final, the Court ordered on April 11, 1953, on motion of Uy Tiong Oh, the issuance of the corresponding writ of execution and directed the Provincial Sheriff to sell, at public auction, "whatever rights, interest and participation the defendant may have on the property levied upon the proceeds thereof to be applied in satisfaction of the judgment rendered" as above stated [Annex E]. After issuing the corresponding notice of auction sale [Annex F], on April 30, 1953, the Provincial Sheriff sold to Uy Tiong Oh for P500.00, such right, interest and participation as Gorgonio Pandes has or might have in the partnership aforementioned [Annex 6]. Prior thereto, or on April 22, 1953, Gorgonio Pandes had moved for the reconsideration of the Order of April 11, 1953, upon the ground that the partnership in question was under receivership and, being as such under custodia legis, said partnership and its assets are not subject to garnishment [Annex G]. The motion for reconsideration having been denied by the Court presided over by Hon. Jose Teodoro, Sr., Judge, [Annex H], Gorgonio Pandes instituted the present certiorari proceedings. In his petition to this effect, he prays:
"2. That the Hon. Jose Teodoro, Sr., Judge of the Court of First Instance of Negros Occidental, and Jose Azcona, Ex-Officio Provincial Sheriff of Occidental Negros be ordered to refrain from further proceeding in the matter here sought to be reviewed until further order of this Court. "3. That after hearing the parties, a judgment be rendered declaring the order of April 11, 1953 as improper, null and void as in excess of the jurisdiction of the respondent judge, or as being a grave abuse of his judicial discretion; and that the petitioner be conceded such further and other relief as in the opinion of the Court he is justly and equitably entitled, with costs. [p. 4, petition]. It appears that on October
17, 1950, Uy Tiong Oh and Ester Pandes, assisted by her husband,
petitioner
Gorgonio Pandes executed a contract of partnership, copy of which is
appended
to respondents' answer, as Annex 1. It is stated therein that Uy King
Poe
[alias Uy Tiong Oh] owns two [2] cinema projectors described therein,
with
all their accessories; that Mrs. Pandes owns one [1] generator and one
[1] motor, with their corresponding accessories, all installed at the
Eden
Theater, situated at San Carlos, Negros Occidental; and that both
parties
have agreed to form a partnership for the operation of a cinema house
at
said Theater, subject to the condition that Uy would contribute said
projectors
and Mrs. Pandes, the generator and the motor above referred to; that
the
rentals of the building would be charged against the partnership; that
the net profits, after deducting all expenses, would be divided equally
between the partners; that Mrs. Pandes would be the managing partner
and
Uy Tiong Oh, the treasurer; that the employment and dismissal of
employees
would be determined by both; and that the partnership would exist for
five
(5) years, subject to renewal.
This view was reiterated and applied in Orlanes & Banaag Trans. Co. vs. Asiatic Petroleum Co. [P. I.], Ltd. and Laguna-Tayabas Bus Co. [59 Phil., 433, 439], in the following language:
"In the case of Cu Unjieng e Hijos vs. Mabalacat Sugar Co. (58 Phil., 439), which was decided on September 22, 1933, this Court held that the Court, which ordered the placing of the mortgaged property in the hands of a receiver in a foreclosure proceeding, has jurisdiction to order the sale of said property at public auction even before the termination of the receivership. "In the case under consideration, it was the same Court of First Instance of Tayabas, which ordered the certificates of public convenience in question placed in the hands of a receiver, appointed the receiver who was to take charge thereof, and ordered the receiver thus appointed to sell said certificate. In accordance with the aforecited doctrine, said Court of First Instance of Tayabas had jurisdiction to order said sale." For
this reason, respondents
maintain that petitioner is not entitled to the relief sought, the
garnishment
and the sale under execution complained of, having been ordered, not
only
by the same court of First Instance of Negros Occidental which had
jurisdiction
over the receivership, but, also, by the same judge, respondent Jose
Teodoro,
Sr., who appointed the receiver.
In view of the foregoing, the petition is hereby dismissed, with costs against the petitioner. It is so ordered. Paras, C.J., Pablo, Bengzon, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur. |
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