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[ A.M. No. OCA-IPI 97-315-RTJ. February 1, 1999]

ERNESTO L. VILLAVERT vs. JUDGE SYLVIA G. JURAO.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated FEB 1, 1999.

A.M No. OCA-IPI 97-315-RTJ (Ernesto L. Villavert vs. Judge Sylvia G, Jurao, Regional Trial Court, Branch 10, San Jose, Antique.)

Complainant Ernesto L. Villavert is the plaintiff in an ejectment case (Civil Case No. 872) filed in the Municipal Trial Court of San Jose, Antique. On January 9, 1990, judgment was rendered on the basis of the compromise agreement by the parties, whereby the defendant in that case, Nenita Mijares, was given until December 31, 1991 within which to vacate the premises.

On June 9, 1991, alleging fraud, the defendant spouses Mijares sought release from the compromise agreement and moved for annulment of the MTC's decision. Complainant on the other hand moved for the execution of said decision.

On September 2, 1991, the MTC denied the defendants' motion to annul judgment. It likewise denied complainant's motion for execution on the ground that the defendants had a right to stay in the premises until December 31, 1991.

On January 4, 1993, complainant again moved for execution but his motion was again denied by the MTC on the ground that there were two pending actions in the Regional Trial Court filed by the defendants against complainant. One (Civil Case No. 2494) was for reconveyance of property while the other (Civil Case No. 2519) was for annulment of the decision of MTC in the ejectment case.

Complainant filed a petition for certiorari and mandamus, docketed as Civil Case No. 2639 in the RTC of San Jose, Antique (Branch 10). Judgment was rendered in his favor, and the MTC was ordered to issue the writ of execution in the ejectment case. Complainant moved for execution of the RTC's decision, but defendant spouses moved for a reconsideration of the decision and, when their motion for reconsideration was denied, filed a notice of appeal.

Complainant, whose motion for execution was granted, filed a Motion for Execution Pending Appeal. He alleged that although the RTC had granted his motion for execution on July 8, 1996 the court's order could not be enforced because the records of the case were in the MTC. He prayed for the issuance of a writ of execution of the MTC's decision in the ejectment case (Civil Case No. 872). However, respondent judge, who had taken over from Judge Emilio B. Legaspi, did not act on complainant's motion on the ground that the court no longer had "jurisdiction over the case by reason of the perfection of defendant spouses' appeal. Complainant moved for reconsideration of respondent judge's orders of October 9 and 22, 1996 giving due course to defendant spouses' notice of appeal and withholding action on his Motion for Execution Pending Appeal, respectively, but his motion was denied by respondent judge in her order dated November 5, 1996. Hence this administrative complaint. Complainant charged respondent judge with bias and ignorance of the law for giving due course to defendant spouses' notice of appeal without ordering the deposit of rentals by them and without acting on his motion for execution.

The Office of the Court Administrator, to which this case was referred for evaluation, recommends that the complaint against respondent judge be dismissed for lack of merit.

The recommendation is well taken. Complainant filed a Motion for Execution Pending Appeal on October 18, 1996. At that time, the RTC no longer had jurisdiction over the case in view of the fact that six days earlier, on October 12, 1996, defendant spouses had perfected their appeal.

Nor is there merit in complainant's allegation that respondent judge acted improperly in giving due course to the defendants' appeal even if they had not deposited the current rent. Complainant is confused. The appeal was from the decision of the RTC in the certiorari case filed by complainant. It was not from the decision in the ejectment case which was a separate proceeding. There was therefore no need to deposit rents. (See Rule 70, �8 of the 1964 Rules of Court, now Rule 70, �19 of the 1997 Rules of Civil Procedure)

Considering the foregoing, the Court RESOLVED to DISMISS for lack of merit the complaint against respondent judge of the Regional Trial Court.

Very truly yours,

TOMASITA M. DRIS

Clerk of Court


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