Gorgonio Pandes, Petitioner, vs. Hon. Jose Teodoro, Sr., Judge of the Court of First Instance of Negros Occidental et al., Respondents, G. R. No. L-6666, May 12, 1954 [Supreme Court Decisions]

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Title: Gorgonio Pandes, Petitioner, vs. Hon. Jose Teodoro, Sr., Judge of the Court of First Instance of Negros Occidental et al., Respondents, G. R. No. L-6666, May 12, 1954 [Supreme Court Decisions]
Language: English
Source: The Lawyers Journal XIX (6) June 30, 1954
Year: 1954
Subject: Civil procedure -- Philippines
Rights
Abstract: [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.]
Fulltext: XXIX Gorgonio Pmuies, Petitionir, vs. Hon. Jose Teodoro, Sr., Judge of the Coitrt of P.irst lnstancl? of Nt.9ros OccidcP.tal et al., R espondo1ts, G. R . .Vo. L-6666, il1ay 12, 1954, Conce7Jcion; J.: 1. CIVIL PROCEDUHE; ATTACHMENT OF PROPERTIES UNDER RECEIVEHSHIP. - The exemption from attachment, ga.rnishme11t or sale under execution of properties under Teceivcrship is not absolutr-. Such pmperties may not he levied upon "except by /cave of t.lie Court appointing the receiver" (4 Am. Jur. 808 ; 45 Am. Jur. 132). This is a mere consequence of the theory that "a receiv.:!rship operates to protect the receiver against interference, without the consent of the court appointing him, with his c1isrody and possessio11 of the property subject to the receivership" (45 Am. Jur. 132; underscoring suppliedl. Hence, "it has heen held x x x that real estate in the custody of a receiver can be levied upon and sold under execution, )>rovided only that the actual possession of the re<:eiver is not interfered with" (45 Am. Jur. 133-134, citing Albany City Bank v. Schermerhorn, 9 Paige [NY] 372, 38 Am. Dec. 551). The reason is that "oTI.ly a 1·ecei\·er's pnssession of p1 ·01ierty subject t-o receivership x x x is entitled to protection x x x against interference" (45 Am. Jur. 134; sec, also, 75 C. J .S. 759). 2. IBID; IBID. - The interference enjoined is that resulting from orders or processes of :l court ''other" than that which appointed the receiver <45 Am. Jur. 136), the rule being predicated upon the need of preventing "unseemly conflicts bet.. ween courts whose jurisdiction embraces the same subjects !1.nd persons" (45 Am. Jur. 137). Manuel T. 7'1mo9ba1ma and Alfredo S. Tad.Y for petitioner. A rturo Villarmeva and E11femfo Parana for respondents. DEC I S IO N CONCEPCION, J .: On December 9, Hl52, Uy Tiong Oh instituted in the Court of First Instance of Negros Occidental Civil Case No. 2562, against Gorgonio Pancles, for the recovery of a sum of monl!y <Annex AL l'pon the posting of the corresponding bond, a w1·it of preliminary attachment was issued, on motion of Uy Tiong Oh, "against the properties of the defendant not exempt from execution" <Annex BL Then, the provincial sheriff issued a "Notic(' of Garnishment" <Annex CJ upon "whatever right, interest end participation the defendant Gorgonio Pandes has or might have in" a certain "partnership between Uy Tiong Oh and Ester PanO.es, 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 Ga.rnil!hment of the l"1ovincial Sheriff" <Annex D>, praying that said garni~hment "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 aud Gorgonio Pandes." Admittedly, Uy King Poe, the plaintiff in said case No. 2371, is the same Uy Tiong Oh, the pie.inti(£ 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 exe:::ution and directed th£; prov!ncial sheriff to sell, at public auction, "wilaten~r rights. interest and participation the defendant may h:ive on the pro1icrty levied upon x x x the p.<"Oceeds thereof to be applied in satisfaction of the judgment rendered" as above stated (Annex E>. After issuing the corresponding noti:::c of auction sale <Annex F>, on April 30, 1953, the provincial sheriff sold to Uy Tiong Oh for !'500.00, such l'ight, interest nnd participation as Gorgonio Pandes has or might have in the partnership a.forementioned <Annex 6>. Prior thereto, or on April 22, 1953, Gorgonio Pandcs had moved fo1· the reconsideration of the order of April 11, 1953, upon tl1e ground that the partnel'ship in question was under receivership and, being a.'! such, under rnstodi<l le9is, said partnership and its assets are not subject to garnishment <Annex Gl. The motion for reconsid~ration having l:een denied by the court, presided over by Hon. Jose Teodoro, Sr., J udge, <Annex Hl, Gorgonio Pan.fes in stituted the present certioiari p1·occedi11gs. In hi.!"! petition to this effect, he prays: "l. For the issuance of nn order requiring the Clerk of Court of First Instance of Negros Occidental to certify to this Coul't, a copy of the order of December 10, 1953, a copy of the order of April 11, 1953, all in Civil Case No. 2S71 of the sa id court, that the same may be reviewed by this Court. "2. That the Hon. JOS E T EODORO, Sr., Judge of the Court of First Instance of Ncgros Occidental, and JOSE AZCONA, Ex-Officio Provincial Sheriff of Occidental Ncgros be ordered to refrain from further proceeding in the matter here sought to be revi~wed until further order l)f this Court. "3. That after hearing the parties, a judgment be rendered dt'claring the order of AJ>r il 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 Coul't 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, exE' - cuted a contract of partnership, .~opy of which is ~ ppended to respondents' anSwl'r, as Annex 1. It is stated therein that Uy King Poe <alias Uy Tiong Oh) owns h\'c:, <2) cinema projectors described therein, with all its aceesso1-ies ; that Mrs. Pandes owns one ll> g-ene:i·ator and one (}) motor, with its corrc,sponJing accesories, all installed at the Eclen Theater, situated at San Carlos, Negros Occidental; and that both parties ha.ve agreed to form a partnership for the operation of a cinema house ~t said Theater, subject to the condition that Uy would contribute mid projectors and Mrs. Panclcs, the generator and the motor r.bovc referred to; tliat the rentals of the building wo• Jld be charge r.gainst the partnership; that the net profits, after deducting all llxpenses, would be dh·ided equally between the partnP.rS: that Mrs. Pam.les would be the managinl( partner and Uy Tiong Oh, the trea.surer; that t!ie employment and dismissal of employees would be determined by both; nnd that the partnership would exist for five (5) years, subjeC"t to renewal. 1t furthn ar,pear that on or about July 2, 1952, Uy King Poe •ulias Uy Tiflng Oh) commenced the aforementioned ch•il case No. 2371 of the Court of First ·Instance of Ncgros Occidental, for thl'i dissolutiot\ and liquidation of said partnership and the recovery of the sum of f'lS,000.00, upon the ground that l\l!·ti Pa:ides had misappropriated said sum a llegedly belonging to the partuership, and that she ha'.! prevented the plaintiff and his representatives from inspecting and supervising "t.hc Jiremises of the cinema h9use, causing bodily harm to said represr-ntntivcs." (Annex 4.) Upon the same g rounds and the additional ground that Mrs. Pandes would continue defrauding the partnership and had threatened to damage and destroy his projectors, Uy King Poe moved for the appointment of u receiver, "to take can~ of the properties contributed" by the partners and, also, of the "administration of the Cinema House" during the pendency of the c3se (Annex 5l. Acting upon this motion, said court, presided over by the same J udge, respondent Jose Teodoro, Sr., appointed one Feijsberto A. Broce, "as receiver x x x with authority to take possession nnd take charge of the Cinema House denominated and popularly known as Eden Theater, situated at San Carlos, Negros Occiden~al, Philippines." June 30, 1954 THE LA WYERS JOURNAL 30i CAnnex 3.) The only question for detern1ination in the case a.t bar is whether or r.ot r espondent JuJge had, in the worJs of pEJiti'lner herein <par. 10 of the petition), " exceeded his nu1·J10rity when he issued the <'l"dcr of April 11, 1953" < Annex EJ, directing the ])rovincial sheriff "to sell at public auction whatever rights, interest ancJ participation the deJen,fants ma y have on the propcrt~· levied upon x x x the proceeds thereof to be applied in satisfaction of the judgment rendered in this case." Petitioner maintains the affirmative, upon the ground that "said partnership being in the hands !)f a receiver, the same n the properties thereof cannot be reached by execution.'' (Par. 10 of the petition.) This pretense is untenable lor the exemption from attachment, garnishment or sale undCr execution of prC1perties under 1·eceivership is not absolute. Such properties may not. be levied upon "except by leave of the Court appointing the reccivilr" (4 Am. Jur. 808; 45 Am. Jur. 132). This is a mere consequence of the theory t hat "a receivership operates to protl!ct the receiver against interference, without the consent of t he r.ourt p.ppointing him, with his cust<1dy and possession of the propert.y subject to the receivership" (45 Am. J ur. 132; underscoring supplied). Hence, "it has been held x x x that real estate in the custody of a receiver can he levied upon and sold under execution, pfovided only that the act1tal ·.'.>ossession of the receiver is not interfered wit.h" t45 An1. Jur. l ;i3-134, citi11g Albany City Bank v. Schermerhorn, 9 Paige [NY] 872, 38 Am. Dec. 551). The reason is that "orily a n~ceiver's possession of property subject to receivership x x x is entitled to protection x x x aga.inst interference" C45 Am. Jur. 134: see, also, 75 C.J.S. 75!)). Then, agaiu, the interference cnjr1ined is that resulting from orders or processes of a court "other" than that wl:ich a1 1poi!lted tlie receiver (45 Am. Jur. 136), the rule being predicated upon the need of preventing "unseemly conflicts between courts whose jurisdiction embraces the !':ame subjects and persons'' (45 Am. Jur. 137>. Thus, m Cu Unjieng c Hijos ' '8. Mabalacat Sugar Co . . (58 Phil. 439, 441); this Court said: "The fact ·that the mortgaged properties a re in the hands of a receiver appointed Ly the court which tried the foreclosure suit docs not prevent the s:wne court from ordering the sale of the aforesaid mortg.9.ged properties, inasmuch as although the said properties are in ciistodia legis by virtue of the conflict of jurisdiction therein because the court that ordered the sale thereof is the same which ordered that they be placed under receivenhip.'' public convenience in question placed in the hands of a Te.. cciver, appointed the receiver who was to take <'harge thereof, and ordered the receiver thus appointed to sell said certifica!es. Jn accordance with the a.fore-cited doctrine. said Court of F irst Instance of Tays.bas had jurisdiction to order said sale.'' For this reason, respondents maintain t.hat petitioner is not entitled to the relief sought, the garnishment and the sale under cx1·cution complained of, having been ordC'l"ed, n'lt only by the .same court of First Instance of Negros Occidental which had j urisdiction over the receivers.hip, but, also, by the aame Judye, res.. pondent Jose Teodoro, Sr., who appointed the receive.r At .any rate, the receivership in case No. 2371 is limited to the "po:;session'' and administrati'ln "of the Cilwma House dominated :rnd popularly known as Eden Theater" C Anncx 3>. This is not necessarily a receivership of the partnel"ship in question. Rut, even if it w;.ere, neither s11id possession by the receiver, nur the administrntfon of the Eden 'Theater are affected by the order complained of <Annex E), t he same being directed, not against the partncr.;.ii.ip or its propcrti'!s, but against those of Gorgonio Pandes, particularly, "whatever rights, interest and participation" he "h'.1.s or might have" in said partnership. This right, interest or participation, if any, i3 a pl"Operty of Gm·gonio Fandes, separate and distinct from the properties of the partne.rship, which has a personality of its own, distinct from that of its partners, and, certainly, of said Gorgonio Pandes C Arts. 44 and 1768, Civil Code of the Philippines>. Such property, if any, of the latter, is not under receivership. The receiver had no authority to take i~ under his custody and, in fact, never had it in his possession or under his administration. Consequently, it is not iu cu.stodia legis and is subject to levy, even without the permission of the c6urt appointing the receiver. In view of the foregoing, tho petition is hereby dismissed, with costs against the petitioner. IT IS SO ORDERED. Pnras, Pablo, Bcngzon, Mo11tcmayor, Reyes, J1 1go, Bautista. • A ngelo 1:md Labrador, J .J . , concur. Mr. Justice Padilla did not take part. xxx Lu:on Stevedorin9 Co., Inc., llnd V isayrrn Stet•edore Tra?isporta. tion Co., Petitioners, vs. The Puhlic Se1·vicc Commission and the Phil. imiine Shipo1vnc,·s Associotion, R.!npomlents, G. R. Nu. L-5458, September Hi, 1953, 'l'uazon, J. This view was reiterated .:md applied in Orlanes & Banaag Trans. Co. vs. Asiatic Petr'lleum Co. (p. I .), Ltd. and Laguna- 1 . Tayabas Bus Co. C59 Phil. 433, 439), in the followi1 1g language: PUBLIC SERVICE LAW; WHAT CONSTITUTES PUBLIC SERVICE OR PUBLIC UTILITY . - It is not 11ecessa1·y, nnder Sec. 13(b) of the Public Ser1ice Law (Commonwealth Act No. 146) that one holds himself ont as serving or willing to se!"V"e the public in order to be considered public. In Luzon Brokerage Co. v . Public Service Commi!!Sion, 40 0 . G. , 7th Supplement, p. 271, this Court declared th9.t "Act 454 is ciPar in including in the definition of public s~rvice that which is rendere-d for compensation, although limited <>Y.ciusively to th~ customers of the petitioner." 308 "The appellants contend that inasmuch as the certificates of public convenience in question were in the hands and under the control of a judicial receiver and, thetefore, in cu...-. todia legis, the Court of Firs~ Instance of Tayabas had no jurisdiction to order the sale thereof and, -::onsequently, the sale made by the sheriff of the City of Manila. to the Asiatic Pet roleum Company CP.I.), Ltd., and the assignment for the latter of its rights in favor o.f the Laguna-Tayabas Bus Com- 2 . pany are null and void. "In the case of Cu Unjie11g e Hijos vs. 1'fobalncat Suga.r Co. (58 Phil., 439), which was decided on September 22, 1933, this court held that the court, which ordered the placing of t.he 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 r eceivership. " In the case under consideration, it was the sa.me Court of F irst Instance of Tayabas, which ordered the certificates of JBJD ; JnlD. - In the United States where, it is said, that there is no fixed definition of what constitutes public service or public utility, it is also held that it is not always 11ecess9.ry, in ord£'r to be a public service, that an organization be dedieated to public use, i.e., ready and willing to serve the public afi a class. It is only necessary that it must in some way be impressed with a public interest; and whether the operation of a given business is a public utility depend~ upon whether or not the service rendered by it is a public character and of public consequence and concern . <51 C. J. 5.) Thus, a business may be affected with public interest anQ regulated for public good although not under any duty to serve the public (43 Am. Jur. 572 .) THE LAWYERS JOURNAL June 30, 1954
pages: 307-308