1. CERTIORARI. — A writ of certiorari will not be issued unless it clearly appears that the court to which it is to be directed acted without or in excess of jurisdiction.

2. ID. — If a court has jurisdiction of the subject matter and of the person, decisions upon all questions pertaining to the cause are decisions within its jurisdiction, and however irregular or erroneous they may be they cannot be corrected by certiorari.

3. MANDAMUS; JURISDICTION OF COURT OF FIRST INSTANCE. — A Court of First Instance has jurisdiction of an action of mandamus, and therefore has jurisdiction to decide every question pertaining to that case; and the issuance of a mandatory injunction, even though ex parte, requiring a municipal president to issue a cockpit license, to stand during the pendency of the action, to one who had tendered the money an bond required by law, is not an act in excess of jurisdiction, although it may be irregular an erroneous.

4. ID.; ID. — In action for a writ of mandamus one of the principal questions to be determined by the court is whether or not the officer to whom the mandamus is to be directed may use discretion and exercise his judgment in the performance of the act which he is asked to perform, and the determination of that question by the court, even though wrongly, is not in excess, nor does it deprive it, of jurisdiction.

5. ID.; ID. — The issuance by a Court of First Instance of a writ of mandamus directed to a public officer requiring him to perform an official act is not an act in excess of jurisdiction, although an appellate court may find that the writ should not have been issued, as the public officer under the law had a right and it was his duty to use judgment and discretion in the performance of the act required by the writ to be performed.

6. ID.; ID. — It may be stated as a general rule that the decision by a court of on of the fundamental questions in the action before it does not, except, perhaps, in cases involving a constitutional question, deprive it of jurisdiction whichever way it may decide.

7. ID.; JURISDICTION DEFINED. — Jurisdiction is the authority to hear and determine a cause — the right to act in a case. Since it is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the rightfulness of decision made.

8. ID.; JURISDICTION TO BE DISTINGUISH FROM EXERCISE OF JURISDICTION. — Jurisdiction should be distinguished from the exercise of jurisdiction. The authority to decide a case at all and not the decision rendered therein is what makes up jurisdiction of the person and the subject matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction.

9. CERTIORARI; CERTAIN ERRORS NOW CORRECTED BY APPEAL INSTEAD OF BY WRIT. — The writ of certiorari, in so far as it was a method by which the mere errors of an inferior court could be corrected, no longer exists. Its place is now taken by the appeal and so long as the inferior court retains jurisdiction, its errors can be corrected only by that method.

10. ID.; PRESENT RESTRICTED USE OF THE WRIT OF CERTIORARI. — The office of the writ of certiorari has been confined in this country to the correction of defects of jurisdiction solely and cannot be legally used for any other purpose. It is truly an extraordinary remedy and its use is restricted to truly extraordinary cases.

11. MANDAMUS; RIGHTS OF PUBLIC AND OF THE COURT. — The people have a right to go to the Court of First Instance to require a public officer to perform his duties; and they have the right to require that court pass upon the whole case and upon every phase thereof and upon every question arising therein. This right is statutory and must be respected by the courts as well as by others. As long as the court is deciding questions pertaining to that cause, its rights and the rights of the litigant to continue it to final determination undisturbed are inviolate.

12. THE TRIAL COURT SHOULD BE GIVEN OPPORTUNITY TO CORRECT ALLEGED ERRORS OF JURISDICTION. — Where it is claimed that a Court of First Instance has in the judgment of one of the parties issued an injunction erroneously or performed any other act in the opinion of a party illegally or beyond or in excess of his jurisdiction, the party should, before invoking the jurisdiction of a higher court, call the attention of the inferior court to its supposed error and ask for its correction; and this court discourages all attempts to come here upon questions which a court below is entitled to decide without first invoking its judgment thereon.

13. ID. — Questions which Courts of First Instance are required by law to decide should not be summarily taken from them and presented to this court without first giving them an opportunity of deliberately passing upon such questions themselves; and where it is claimed that a mandatory injunction issued ex parte was issued by the court in excess of its jurisdiction, a motion should be made to the court for its dissolution before an application is made to the Supreme Court for a writ of certiorari to review the proceeding.

This is an application for a writ of certiorari to the court of First Instance of the Province of Rizal.

It appears that on or about the 1st of March, 1913, Constancio Joaquin, believing himself entitled to a license to open and exploit a cockpit in the municipality of Caloocan, and the authorities thereof refusing to issue it to him, began an action against Godofredo B. Herrera as municipal president of said municipality, the officer whose duty he claimed it was to issue cockpit licenses, to obtain a mandamus compelling said official to issue such license.

On the presentation of the verified complaint and upon the facts stated therein and the exhibits annexed thereto, the plaintiff asked that the court issue a mandatory injunction directed to the defendant requiring him to issue a provisional license under which the plaintiff might conduct his cockpit during the pendency of the action. The court, in pursuance of such request and upon the facts stated in the complaint and exhibits annexed thereto, issued such order ex parte without notice to the defendant.

Thereupon the defendant in that action began a proceeding in this court against the judge of the Court of First Instance who had issued the mandatory injunction relative to the provisional license referred to, Honorable Alberto Barretto, and Constancio Joaquin, plaintiff therein, for a writ of certiorari, alleging that the court below had acted without jurisdiction in the following particulars:jgc:chanrobles.com.ph

"1. That the said Honorable Alberto Barretto exceed his jurisdiction in issuing a mandatory injunction, because, according to paragraph (j), section 40, of the Municipal Code and article 4 of municipal ordinance No. 8 of Caloocan (Exhibit 1 a), the issuance of cockpit licenses in Loma and Maypajo does not pertain to the municipal president of Caloocan but to the municipal council thereof.

"2. That the said Honorable Alberto Barretto exceeded hid jurisdiction in issuing the mandatory injunction ex parte without giving the municipal president opportunity to show cause why such injunction should not be issued as required by section 202 of Code of Civil Procedure.

"3. That said Alberto Barretto exceeded hi jurisdiction in issuing such mandatory injunction for the reason that the cockpit license which the president of Caloocan had erroneously issued in favor of Constancio Joaquin, on the _____ day of _____, 1913, has been annulled and canceled by virtue of ordinance No. _____ of the municipal council of Caloocan, which ordinance has been duly approved by the provincial board of Rizal.

"4. That there being another action pending between the same parties, founded upon the same facts and reasons, the Court of First Instance of Rizal has no jurisdiction to issue the mandatory injunction of the 1st of March, 1913 (Exhibit 4), for the reason that such injunction tends to render inefficacious and null the final decision which this honorable court will render in civil cause No. 8673."cralaw virtua1aw library

The action referred to in this paragraph is one begun by Antonio Bertol and Tranquilina T., widow of Angeles, against Godofredo B. Herrera and others relating to validity of a certain ordinance.

"5. That there being pending civil cause No. 986 mentioned in the previous paragraphs, the Court of First Instance of Rizal lacked jurisdiction to issue the mandatory injunction which he issued on the 1st of March, 1913, for the reason that it tends to render inefficacious and null the decision which the Honorable Richard Campbell will render in civil No. 986."cralaw virtua1aw library

The objection is based upon an action previously begun by Antonio Bertol and Tranquilina T., widow of Angeles, against the municipality or the officials thereof for the purpose of having declared null and void municipal ordinance No. 8 of Caloocan, which is the same ordinance upon which was based the complaint of Constancio Joaquin and in which the mandatory injunction was issued.

"6. That the said Constancio Joaquin at the present time does not posses a license to maintain and run the said cockpits of Loma and Maypajo, nor does he have the right to exploit the same."cralaw virtua1aw library

It has been repeatedly held by this court that a writ of certiorari will not be issued unless it clearly appears that the court to which it is to be directed acted without or in excess of jurisdiction. It will not be issued to cure errors in the proceedings or to correct erroneous conclusions of law or of fact. If the court has jurisdiction of the subject matter and of the person, decisions upon all questions pertaining to the cause are decisions within its jurisdiction and, however irregular or erroneous they may be cannot be corrected by certiorari. The Code of Civil Procedure giving Courts of First Instance general jurisdiction in actions for mandamus, it goes without saying that the Court of First Instance had jurisdiction in the present case to resolve every question arising in such an action and to decide every question presented to it which pertained to the cause. It has already been held by this court that, while it is a power to be exercised only in extreme cases, a Court of First Instance has power to issue a mandatory injunction to stand until the final determination of the action in which it is issued. While the issuance of the mandatory injunction in this particular case may have been irregular and erroneous, a question concerning which we express no opinion, nevertheless its issuance was within the jurisdiction of the court and its action is not reviewable on certiorari. It is not sufficient to say that it was issued wrongfully and without sufficient grounds and in the absence of the other party. The question is, did the court act with jurisdiction?

It has been urged that the court exceeded its jurisdiction in requiring the municipal president to issue the license, for the reason that he was not the proper person to issue it and that, if he was the proper person, he had the right to exercise a discretion as to whom the license should be issued. We do not believe that either of these questions goes to the jurisdiction of the court to act. One of the fundamental questions in a mandamus against a public officer is whether or not that officer has the right to exercise discretion in the performance of the act which the plaintiff asks him to perform. It is one of the essential determinations of the cause. To claim that the resolution of that question may deprive the court of jurisdiction is to assert a novel proposition. It is equivalent to the contention that a court has jurisdiction if he decides right but no jurisdiction if he decides wrong. It may be stated generally that it is never necessary to decide the fundamental questions of a cause to determine whether the court has jurisdiction. The question of jurisdiction is preliminary and never touches the merits of the case. The determination of the fundamental questions of a cause are merely the exercise of a jurisdiction already conceded. In the case at bar no one denies the power, authority, or jurisdiction of the Court of First Instance to take cognizance of an action for mandamus and to decide every question which arises in that cause and pertains thereto. The contention that the decision of one of those questions, if wrong, destroys jurisdiction involves an evident contradiction.

Jurisdiction is the authority to hear and determine a cause — the right to act in a case. Since it is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the rightfulness of the decisions made. Jurisdiction should therefore be distinguished from the exercise of jurisdiction. The authority to decide a cause at all, and not the decision rendered therein, is what makes up jurisdiction. Where there is jurisdiction of the person and subject matter, as we have said before, the decision of all other questions arising in the case is but an exercise of that jurisdiction.

In the case of Chase v. Christianson (41 Cal., 253), the court said: "Here, then, was jurisdiction of the subject matter and of the person, and, these conditions conceded, the decision of all other questions arising in the case is but the exercise of that jurisdiction, and an erroneous decision of any of these other questions could not impair the validity and binding force of the judgment when brought in question collaterally.

"It is not the particular decision given which makes up jurisdiction, but it is the authority to decide the question at all. Otherwise all distinction between erroneous exercise of jurisdiction upon the one hand, and a total want of it upon other, must be obliterated."cralaw virtua1aw library

In the case of Freeman v. Thompson (53 Mo., 183), the following is quoted with approval from Paine v. Mooreland (15 Ohio, 435): "The court once having, by its process, acquired the power to adjudicate upon a person or thing, it has what is called jurisdiction. . . . The distinction is between a lack of power or want of jurisdiction in the court, and a wrongful or defective execution of the power. In the first instance, all acts of a court, not having jurisdiction or power, are void; in the latter, voidable only. A court, then, may act, first, without power or jurisdiction or power of jurisdiction; second, having power or jurisdiction, may exercise it wrongfully; or third, irregularly. In the first instance the act or judgment of the court is wholly void, and is as though it had not been done; the second is wrong and must be reversed upon error." the third is irregular and must be corrected by motion."cralaw virtua1aw library

In Hardin v. Lee (51 Mo., 241), the court said: "The judgment though grossly erroneous was not void, the court having acquired jurisdiction of the subject matter. . . . In other word, error and nullity are not legal equivalents or synonyms."cralaw virtua1aw library

In Hagerman v. Sutton (91 Mo., 519), the court said: "The power to decide correctly and to enforce a decision when correctly made necessarily implies the same power to decide incorrectly and to enforce a decision when incorrectly made. (Devis v. Packard, 10 Wend., 71.)"

In Paine v. Mooreland (15 Ohio, 435), the court said: "The distinction is between a lack of power or want of jurisdiction in the court, and a wrongful or defective execution of the power. In the first instance all acts of the court, not having jurisdiction or power, are void; in the latter voidable only."cralaw virtua1aw library

In the case of Colton v. Beardsly (38 Barb., 51), the court said: "The test of jurisdiction is, whether the court has power to enter on the inquiry, and not whether it decision is right or wrong."cralaw virtua1aw library

In Wertheimer v. Boonville (29 Mo., 254), the court said: It is hard to conceive how the question of jurisdiction can be made to depend on the fact whether the judgment was right or wrong. The mayor unquestionably has authority to decide whether the ordinance had been violated, and after he has determined it, how can it be said he had no jurisdiction?"

In O’Reilly v. Nicholas (45 Mo., 160), the court said: "A judgment, though informal, even to the extent of granting a relief not contemplated in the petition, when the parties are before the court and the relief is within its jurisdiction, is not a void proceeding. The doctrine laid down in Fithian v. Monks (43 Mo., 502), ’in that it fails to make the readily observable distinction between jurisdiction to act in a given cause, and erroneous exercise of such jurisdiction, . . . should no longer be followed. . . . Jurisdiction being acquired error could not oust it, although that error consisted in granting relief not warranted by law.’"

In the case of Gray v. Bowles (74 No., 419), the court; "When a court has jurisdiction of the subject matter of the action and the parties to it, a judgment rendered by it, although it may be an erroneous, irregular, or wrong judgment, cannot be said to be void, but remains valid and binding until reversed or set aside on the ground of such error or irregularity.’

In State v. Second Judicial District (24 Mont., 238), the court said: "A judgment was rendered against Baker, who appealed but could not furnish the necessary bonds or security on appeal. The purpose of this application is to set aside the judgment, relator asserting that the district court was without jurisdiction. The right to hear and determine necessarily carries with it the power to decide wrong as well as right. It did not exceed its jurisdiction although the court may have erred, yet it regularly pursued its authority. Certiorari may not be used to correct errors committed within the jurisdiction of the court."cralaw virtua1aw library

In Central Pac. v. Board (43 Cal., 365), the court said: "Mere irregularity intervening in the exercise of an admitted jurisdiction — mere mistakes of law committed in conducting the proceedings in an inquiry which the Board had authority to entertain, . . . are not to be considered here upon certiorari, other that writ would be turned into a writ of error. . . . Jurisdiction over a question presented being conceded, carries with it necessarily the authority — the mere power —to decide the question either way."cralaw virtua1aw library

In Lewis v. Larson (45 Wis., 353), the court said: "The judgment of a justice of the peace will not be reversed on a common-law certiorari, if the justice had jurisdiction to render it, no matter how irregular or erroneous it may be."cralaw virtua1aw library

In the case of Utah Association v. Budge (16 Idaho, 751), the court said: "If the court had jurisdiction of the person and the subject matter, then it is clear that whatever mistake has been made has been only an error committed on the part of the trial court exercising his judgment and applying the law to the case, rather than an excess of jurisdiction in acting in a matter wherein he had not acquired jurisdiction to act or wherein his court has no jurisdiction of the subject in litigation. . . . The court had the jurisdiction, power, and authority to hear and determine that question. It accordingly did so. If the court committed an error in deciding the question thus presented, we answer that the court had jurisdiction to commit the error."cralaw virtua1aw library

Although certiorari may be considered a direct attack upon a judgment as distinguished from a collateral attack, nevertheless, under the laws of these Islands the only ground for the issuance of certiorari being the failure of jurisdiction of the inferior tribunal, the basis of the direct attack upon the judgment becomes in this jurisdiction the same as for collateral attack, inasmuch as, generally speaking, a collateral attack against a judgment is sustainable only when the judgment is void for lack of jurisdiction in the court to pronounce it. Therefore the authorities relative to the ground necessary for a successful collateral attack upon a judgment are authorities in a large sense, pertinent to a discussion as to when a court may be held to have acted without or in excess of jurisdiction.

In the case of Cooper v. Reynolds (10 Wall., 308, the court said: "It is no avail, there, to show that there are errors in the record, unless they be such as prove that the court had no jurisdiction of the case, or that the judgment rendered was beyond its power. This principle has been often held by this court and by all courts, and it takes rank as an axiom of the law."cralaw virtua1aw library

In case of Cornett v. Williams (20 Wall., 226), it was declared that "the settled rule of law is, that jurisdiction having attached in the original case, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, unless impeached for fraud."cralaw virtua1aw library

These two cases were cited and approved in the case of Manson v. Duncanson (166 U.S., 533), wherein the court said: "When a court has jurisdiction it has a right to decide every question that may arise in the cause; and whether its decisions be correct or not its judgment, until reversed, is regarded as binding in every other court. These principles apply in all respects and with special force in this case. It was for the court whose decree is attempted to be impeached, not only to decide on the facts before it, but upon the construction and legal effect of all deeds and muniments of titled upon which the proceeding was based. The court having general jurisdiction over the subject matter of decreeing the sale of real estate of a deceased debtor for the payment of debts, it had the right and was required to determine the question as to the liability of a property for the debts, and whether the case was within its jurisdiction; and though its decision may have been erroneous, it could only be reversed upon a direct appeal."cralaw virtua1aw library

See Shepard v. Adams, 168 U.S., 618; Gunn v. Plant, 94 U.S., 664; Parker v. Kane, 22 Howard, 1; Huff v. Hutchinson, 14 Howard, 586; Thompson v. Tolmie, 2 Pet., 157; Hatcher v. Hendrie, 68 C.C.A., 19.

See, also, the long list of authorities cited as sustaining this doctrine in 23 Cyc., 1090, where the rule is stated as follows: "Where a court has jurisdiction of the parties and the subject matter, its judgment, although irregular in form, or erroneous or mistake in law, is conclusive, as long as it remains unreversed and in force, and cannot be impeached collaterally."cralaw virtua1aw library

In the case of Miller v. Rowan (251 Ill., 344), the court said: "A judgment or decree is not binding upon anyone unless the court rendering the same had jurisdiction of the parties and the subject matter of the cause. The court did have jurisdiction of the parties, and the appellant, who is disputing the binding effect of the decree, was one of the complaints. Jurisdiction of the subject matter is the power to adjudge concerning the general question involved, and if a bill states a case belonging to a general class over which the authority of the court extends, the jurisdiction attaches and no error committed by the court can render the judgment void. It the court has jurisdiction, it is altogether immaterial, when the judgment is collaterally called in question, how grossly irregular or manifestly erroneous its proceedings may have been. The judgment cannot be regarded as a nullity, and cannot, therefore, be collaterally impeached. Such a judgment is binding on the parties and on every other court unless reversed or annulled in a direct proceeding and is not open to collateral attack. If there is a total want of jurisdiction in a court its proceedings are an absolute nullity and confer no right and afford no protection but will be pronounced void when collaterally drawn in question. (Buckmaster v. Carling, 3 Scam., 104; Swiggart v. Harber, 4 id., 364; People v. Seelye, 146 Ill., 189; Clark v. People, 146 id., 348; O’Brien v. People, 216 id., 354; People v. Talmadge, 194 id., 67.)"

Trombly v. Klersy (146 Mich., 648); Chapman v. Taliaferro (1 Ga. App., 235); Smith v. Schlink (44 Colo., 200), where the court said: "That the court had jurisdiction of the parties and the subject matter cannot be questioned. This being true, and it not appearing that the judgment was not within the issues presented by the pleadings, however erroneous it may be, the judgment cannot be held to be void, so as to bring this case within the rule that disobedience of avoid decree does not constitute contempt of court."cralaw virtua1aw library

Baldwin v. Foster (157 Cal., 643), where the court said: "Throughout this consideration the fact is to be borne in mind that we are not reviewing judgment under attack made on direct appeal where errors prejudicial to those appealing would call for a reversal, but we are considering it upon collateral attack, where every intendment is in favor of the judgment and where mere errors and irregularities will not be considered. Upon collateral attack the judgment will be set aside, generally speaking, for but one of three reasons: Lack of jurisdiction of the person, lack of jurisdiction of the subject matter of the action, or an absolute lack of jurisdiction to render such a judgment as the one given. (Moore v. Martin, 38 Cal., 428; Mayo v. Foley, 40 Cal., 281; In re James, 99 Cal., 374; 37 Am. St. Rep., 60; 33 Pac., 1122; Wood v. Jordan, 125 Cal., 261; 57 Pac., 997.)"

Goodman v. City (164 Fed., 970); Sawyer v. Kelly (148 Iowa, 644); Lucy v. Deas (59 Fla., 552).

The certiorari will lie only in case of failure of jurisdiction has been consistently held by this court. The following are substantially all of the cases decided by this court referring to certiorari or prohibition. We include those referring to prohibition for the reason that the ground of its issuance is the same as that in certiorari, viz, lack or excess of jurisdiction:chanrob1es virtual 1aw library

In the case of In re Prautch (1 Phil. Rep., 132), the court said: "Under the provisions of the code in certiorari proceedings, it is necessary that it should appear both that the inferior court has exceeded its jurisdiction and that there is no appeal from such court."cralaw virtua1aw library

In his concurring opinion Judge Willard says: "Considering the existence of facts which may confer jurisdiction, the question of whether those facts are presented in such a manner in the affidavit as to invoke the exercise of this jurisdiction is one which the court has the same right to determine as it would have in the decision of any other questions which might arise in a matter within its recognizance. In the exercise of this power it may issue an erroneous order, but such an order is not absolutely void; unless it is remedied during the same action by means of an appeal or otherwise, it will have the effect of a valid order. The Court of First Instance should not give a judgment upon a complaint on a promissory note which does not state a cause of action, but if it does so its judgment is valid unless it is reversed by means of appeal. We cannot defer to any decision of the supreme court of California which sustains a contrary doctrine. Article 528, already cited, establishes the law of these Islands, and we must submit to that. To accept the other rule would be to convert the writ habeas corpus into a writ of error, a thing which is in no wise permissible. It would make it possible for any defendant by means of such writ to interpose an appeal to this court in all those cases in which an order of arrest should be issued and would oblige us to review the errors of law which are alleged to have been committed by the court in investigating the sufficiency of the affidavit, and this is, in our opinion, the very practice which article 528 seeks to avoid.’

In the case of Reyes v. Roxas (1 Phil. Rep., 625), the court held that the refusal to hear witness offered by the defense in a criminal action might constitute error, but was not an excess of jurisdiction to be remedied by certiorari, the court saying: "The complaint in this case does not allege that the court which convicted the petitioner had no jurisdiction to try the case. Neither does it allege that in the prosecution of the case there has been any affirmative action by the judge outside of his jurisdiction. It simply alleges that he has failed to take action; that he has refused to hear the witnesses for the defendant. This, if true, would constitute error, but it would be error committed by the judge in the exercise of a jurisdiction which he possessed. The remedy by certiorari does not apply to this case."cralaw virtua1aw library

In the case of Dy Chuan Leng v. Ambler (1 Phil. Rep., 535), the court said: "We cannot grant an injunction under this section unless there is a compliance with articles 164 and 166. It must appear from the complaint that the plaintiff is entitled to recover in the action. If the complaint states no cause of action no preliminary injunction can be issued. The complaint filed in this court is defective in this respect. It shows upon its face that the petitioners are not entitled to an order of prohibition against the court below. The court had jurisdiction of the action to dissolve the partnership. In that action it had the power to grant a preliminary injunction (art. 164), and to appoint a receiver (art. 174). Having those powers, if in the exercise of them any errors were committed, they could be corrected only on appeal from the final judgment. The facts as alleged, that the complaint was ambiguous; that the judge believed that plaintiff below was a partner when the defendants denied it; that he fixed the bond at $1,000 instead of $30,000, as requested by the defendants; that no mention of the bond was made in the writ of injunction; that he refused to hear the defendants’ witnesses; that he refused to dissolve the injunction upon a bond which the defendants offered to give, all of these do not show that the court was acting outside of its jurisdiction. They simply show, if they are true, that the court has committed certain errors in exercising its jurisdiction, errors which must be corrected by appeal."cralaw virtua1aw library

In the case of Ivancich v. Odlin (1 Phil. Rep., 284), the court said at page 287: "The ground upon which the second prohibition is sought is that the attachment ordered by the court is not such an attachment as is authorized by articles 424 et seq. of the Code of Civil Procedure of the Philippine Islands, but on the contrary is an attachment under a procedure not in force here, although it is in force in the United States of America in maritime cases, and that the attachment, moreover, was levied without affidavit, bond, or any of the securities established by law whereby the owners of the steamer can obtain reparation for any damages which may be occasioned them by the lawful detention of the said steamer; and that the procedure of the court below is devoid of all the formal requisites established by law for the levying of such attachments.

"x       x       x

"The judge did not, therefor, act without jurisdiction when directing the attachment of the vessel in question, and has not exceeded his jurisdiction. If the excess of jurisdiction upon which the argument was based consists in his having levied the attachment without the fulfillment of the necessary conditions and without following the form prescribed by some law of procedure applicable to the case, it is our opinion that this error is not such an excess of jurisdiction as can be secured by prohibition, and the petitioner has other means whereby this error of procedure may be corrected or remedied. Upon these grounds we decide that the petition for a writ of prohibition must be denied, with the costs to petitioner, and it is so ordered."cralaw virtua1aw library

In the case of Araneta v. The heirs of Tranquilino Gustilo (2 Phil. Rep., 600, this court said: "This is a petition for a writ of certiorari to review the action of the Court of First Instance of Occidental Negros in requiring a supersedeas bond under section 144 of the Code of Civil procedure. It does not appear from the petition what the amount involved in the litigation is, nor in what sum the bond was fixed by the court, but it is alleged that the bond is excessive. The court below had jurisdiction to require the bond as a condition of a stay of execution, and to fix its amount. Assuming that the bond was excessive, yet nothing is alleged in the petition which shows that the court exceeded its jurisdiction in the premises or committed any irregularity in its proceedings in exercise thereof. The writ must therefore be denied."cralaw virtua1aw library

In the case of Springer v. Odlin (3 Phil. Rep., 344), the court said: "The court, on 30th of May, after hearing both parties, made an order by which it was adjudged that the claim of Co-Banco had a preference over the claim of springer and ordered the money in the custody of the clerk to be delivered to Co-Banco, but requiring him to execute a bond for the sum of P400 with sureties for the protection of Springer in case he appealed to the Supreme Court to annul the order.

"The plaintiff, Springer, alleges in his application for certiorari that the Court of First Instance acted without jurisdiction in making this order of the 30th day of May, 1903; that not being a party in the cause of the United States v. Catalino Mortes, he has no right to appeal nor has he any plain, speedy, and adequate remedy from the order; and further alleging that Co-Banco had no lien upon the P259.50 in dispute, either by attachment or by execution; nor did the said Co-Banco on the date of the making of the order in his favor have any right of any other character upon said money.

"If the Court of First Instance had jurisdiction to render the judgment of the 13th day of May, 1903, in favor of Co-Banco in the case of the United States v. Catalino Mortes, and in the proceeding in which Springer intervened resulting in the order of May 30, or if the plaintiff, Springer, had any plain, speedy, and adequate remedy by a bill of exceptions, appeal, or otherwise from the order of the 30th day of May, 1903, by which the money in question was directed to be paid to Co-Banco, then the proceeding in certiorari will to lie."cralaw virtua1aw library

In the case of Felizardo v. Justice of the Peace of Imus (3 Phil Rep., 635), the court said: "Attorneys Pineda and Escueta, on behalf of Flaviano Felizardo an Francisca Felizardo, upon the facts stated by their complaint, dated April 4, 1904, and upon the ground that there was no other speedy and adequate remedy in the ordinary course of law, pray for an order dissolving the attachment levied upon the property of the petitioners, and that a writ issue to the justice of the peace of Imus, requiring him to absolutely refrain from all further proceedings until a final decision is rendered upon the complaint.

"By intervening in the suit in which the attachment was levied, the parties may avail themselves of all the legal remedies provided for the defense of their lawful rights, but cannot avail themselves of the writ of prohibition for the purpose of obtaining a discharge of attachment complained of. The case is one which pertains exclusively to the jurisdiction of the judge who is trying, and there is no authority of law for interference with the proceedings."cralaw virtua1aw library

In the case of Rubert & Guamis v. Sweeney (4 Phil. Rep., 473), the court said: "The court below had jurisdiction of the subject matter of that suit and of the parties thereto. It had power by law to grant an injunction in the case and power to dissolve it or modify it. There can be no doubt of the correctness of these propositions, but it is claimed by the plaintiff in this suit that the stipulation made between the parties to the suit below to the effect that the sheriff should hold the money until the final judgment in that case, deprived the court of jurisdiction to make the order modifying the injunction and requiring the sheriff to pay the money to the defendant Lo Shui upon his furnishing a proper bond.

"When section 516 of the code of Civil Procedure speaks of a tribunal exercising functions which are without or in excess of its jurisdiction, it covers those cases only in which such tribunal acts without or in excess of the jurisdiction conferred upon it by law. It has no reference to cases where it is claimed that such tribunal acts in excess of jurisdiction which the parties may have attempted by stipulation to confer upon it, or in excess of a jurisdiction to which the parties may by stipulation have attempted to limit the court. The fact that the judge may have committed an error in disregarding the stipulation of the parties has nothing to do with the question of the jurisdiction which by law the judge was authorized to exercise. If there was such error in the action of the court below, it was an error that must be corrected by appeal. An action of prohibition cannot be maintained in such cases. (Citing cases.) There is nothing in the case of Yangco v. Rohde (1 Phil. Rep., 404), relied upon by the plaintiff, in conflict with this rule. As was stated in the case of Dy Chuan Leng v. Amber above cited, the writ of prohibition was t here granted upon the ground that in no case where the fact of marriage was denied did the Court of First Instance have any jurisdiction to grant temporary alimony."cralaw virtua1aw library

In the case of Cantaño v. Lobinger (7 Phil. Rep., 91), the court said: "The concrete questions raised by the parties to these proceedings are (1) whether or not the judge of the Court of First Instance of Leyte had power to issue an injunction against the justice of the peace of Manila in an action pending in his court, and (2) whether the judge of the said Court of First Instance of Leyte could entertain a petition for a writ of certiorari against the said justice of the peace of the city of Manila.

"x       x       x

"The judge of the Court of First Instance of Leyte had no jurisdiction over justice of the peace of the city of Manila, and were judge of the Court of First Instance permitted to grant such extraordinary remedies against a justice of the peace in a district or province other than his own, it would be a serious interference with the proper administration of justice, and a procedure relating to appeals from and other remedies against the judgments of inferior courts would be subverted. It should be borne in mind that the enforcement of the laws of procedure, and more particularly those relating to the jurisdiction of the various courts, concerns the interests of the community at large.

"The judge of the Court of First Instance of Leyte had no power to take cognizance, on appeal, of a case originally tried in the justice court of the city of Manila, nor has he the power to take cognizance of cases that should ordinarily be tried in the Court of First Instance of Manila, unless by virtue of a special commission. Nor has he the power to issue writs of injunction in connection with other special and extraordinary remedies sought from the decision of said justice of the peace."cralaw virtua1aw library

In the case of Herman v. Crossfield (7 Phil. Rep., 259). the court said: "After the term at which judgment was rendered, a Court of First Instance made an order opening the case for the introduction of additional evidence, the motion therefor having been made and argued during said term. Held, That such order was not avoid because made after the close of said term and that it could not be reviewed on certiorari."cralaw virtua1aw library

The court at page 261 said: "Whether the order made on the 14th of April was right or wrong is not before us for decision. The court had jurisdiction to decide the motion, even if it were a motion for a new trial, a point which we do not determine. If it decide it incorrectly, the plaintiff who was the defendant in that case, had the right to except to the order and, although he could not bring the case here at once for decision because that order was not a final judgment, yet he could do so after final judgment had been entered and could then have the order in question reviewed."cralaw virtua1aw library

In the case Somes v. Crossfield (8 Phil. Rep., 284), the action was one of certiorari. The court said:" The plaintiff, in an action brought by himself in the Court of First Instance of manila, made a motion for a preliminary injunction restraining the defendants from selling certain property upon the motion, the court, after saying that the plaintiff was not entitled to the preliminary injunction, made the following order:jgc:chanrobles.com.ph

"‘Accordingly, the petition for a preliminary writ of prohibition is denied, and it is hereby further ordered that the proceeds of the sales under the executions already issued, and pending, either in this court or in the hands of the sheriff of the Province of Albay, be deposited in this court, subject to further orders thereof, upon a bond of P10,000 being filed by the plaintiff to answer for any loss resulting from the failure to apply said proceeds as ordered in the executions issued.’

"The plaintiff thereupon commenced this original action of certiorari in this court, claiming that the court below, in making the order in question, exceeded its jurisdiction. The defendants have demurred to the complaint, and the case is now before us for decision upon such demurrer.



"That the court below did not exceed its jurisdiction in making that order is free from doubt. (Rubert & Guamis v. Sweeney, 4 Phil. Rep., 473)"

In the case of Artacho v. Jenkins (11 Phil. Rep., 47), the court said at page 48: "it is alleged in the complaint that, in ordering the issue of a second execution, the defendant judge exceeded his jurisdiction and that such order was absolutely void. This contention cannot be sustained. The court of Pangasinan had jurisdiction 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 some 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 the case. (See among other cases decided by this court: Rubert & Guamis v. Sweeney, 4 Phil. Rep., 473; Somes v. Crossfield, 8 Phil. Rep., 284; an Yambert v. McMicking, 10 Phil. Rep., 95.)"

In the case of Lagahit v. Nengasca and Wislizensus (12 Phil. Rep., 423), the action was one of certiorari. The action in the court below was one over a contested election. The court, speaking through Mr. Chief Justice Arellano, said: "Whether or not the court below acted rightly in considering the other candidate as the ’adverse party’ and the party defeated in the proceedings is not a matter on which action may be taken by this court in the exercise of its appellate jurisdiction. It is evident that it was a matter within the jurisdiction of the court below to tax the adverse party’ with the costs. The remedy of certiorari is, therefore, not available, as the purpose thereof is to prevent and remedy extra limitations of jurisdiction and authority, not to correct errors in decisions or mistakes of law, which are proper subjects for appeal and cassation.

"The first finding is perfectly in accordance with the provision of the law. The court below in deciding upon the protest against the contested election for president of Aloguisan said: ’The court believes that the majority of the electors at the past election voted in favor of the petitioner, Simeon Nengasca.’ Whether or not this opinion of the court below is proper cannot be the subject of review by this court. It is a decision which is within the jurisdiction of the lower curt as conferred by law.

"As a result of this opinion of the court below, and in compliance with the provision of the law, the judgment should have been: ’Let a writ of mandamus be issued against the board of canvassers requiring the board to correct its canvass in accordance with the facts as found.’

"For the reasons above set forth we decide that the order of the Court of First Instance of Cebu recognizing Nengasca a president-elect at the elections in the municipality of Alonguisan, in aid province, should be, and is hereby annulled for the reason that it is not within the jurisdiction of the said court to recognize or proclaim a president in a contested election."cralaw virtua1aw library

The action of Ocampo v. Jenkins 914 Phil. Rep., 681), was one of prohibition. it was held there: "The fact that an appeal is pending in the Supreme Court in a criminal case for libel, under Act No. 277 of the Philippine Commission, does not prevent the prosecution of a civil action for damages under the same Act, which clearly recognizes two distinct actions upon the theory that there are two separate and distinct injuries received from the crime, one by the State and the other by the individual damaged by the libel. In such a case, therefore, a petition for a writ of prohibition enjoining the prosecution of the civil suit while the criminal appeal is pending will be denied."cralaw virtua1aw library

There are certain cases like Lagahit v. Nengasca an Wilizenus above cited wherein the court has held that certiorari would lie. In the case of Encarnacion v. Ambler (3 Phil. Rep., 623), the court said at page 624: "In the case of Eugenio Bonaplata v. Byron S. Ambler Et. Al. (2 Phil. Rep., 392), which involved the validity of the appointment of Antonio Torres as receiver of the state of Tan-Tonco in the said cause of Sergia Reyes v. Fulgencio Tan-Toco, it was held by this court that section 174 of the Code of Civil Procedure, under which the appointment of the receiver was made, did not authorize the appointment; that no property belonging to Fulgencio Tan-Toco was the subject of litigation in the case of Sergia Reyes v. Tan-Toco; nor did the case fall within either of the other subdivisions of section 174; that the placing of the property of the defendant in said cause in the hands of the receiver for the purpose, after paying fees and expense of distributing the property among the creditors, was practically a bankruptcy proceeding; that there are no bankruptcy laws in force in these Islands: that bankruptcy proceedings have been expressly forbidden by section 524 of the Code of Civil Procedure in Civil Actions until a law shall be enacted; and that consequently the Court of First Instance acted in excess of its jurisdiction appointing Torres receiver in said action.

"We adhere to the view expressed in the decision of this court in the said case of Eugenio Bonaplata v. Byron S. Ambler Et. Al."cralaw virtua1aw library

In the case of United States v. Siationg (5 Phil. Rep., 463), the court said: "Without its being our purpose to decide if the remedy of certiorari invoked by the provincial fiscal is proper in this case or not, we cannot admit his petition on account of its not being made in due form. The remedy of certiorari should be petitioned for by formal complaint having all of the requirements prescribed by the Code of Procedure in Civil Actions, and the petition formulated by the fiscal in the form of a brief in a criminal cause does not come up to these requirements, for which reason it is set aside in accordance with law."cralaw virtua1aw library

"In the case of Rocha & Co. v. Crossfield (6 Phil. Rep., 355), the court, on page 358, after quoting the section of the Code of Civil Procedure relating to cases in which a receiver may be appointed, said: "The case at bar does not fall within any of the provisions of this section. There is no allegation in the complaint, as has been before stated, that the plaintiff is the owner of any of the property of Roca & Co., nor is there any allegation that he has any lien thereon, nor are there any facts alleged in the complaint from which it could be inferred that he was the owner of such property or had any lien thereon. On the contrary, from the facts that are alleged in the complaint it would seem that his separation from the partnership of Carman & Co., left that partnership as a going concern and did not dissolve it. The effect of the provisions of the articles of partnership which are referred to in the complaint is that after the withdrawal of any partner the remaining partners became the owners of all the assets of the partnership and he became a general creditor of the partnership.

"x       x       x

"That case not being one in which a receiver could be appointed, the order making such appointment was void and was beyond the jurisdiction of the court, though that court had jurisdiction of the main action has been settled adversely to the defendants in this suit by the case of Bonaplata v. Ambler (2 Phil. Rep., 392; see also Encarnacion v. Ambler, 3 Phil. Rep., 623; Findly & Co. v. Ambler, 3 Phil. Rep., 690).

"That certiorari is the proper remedy in such a case was decided in the case of Blanco v. Ambler (3 Phil. Rep, 358, 735).

"In the argument in this court it was claimed that his extraordinary remedy would not lie because the plaintiff, Rocha & Co., had a right to appeal from the order appointing a receiver, although that appeal could not be taken until a final judgment had been entered in the case. That argument is answered by what is said in the case of Yangco v. Rohde (1 Phil. Rep., 404)."cralaw virtua1aw library

In the case of Bañes v. Cordero (13 Phil. Rep., 466), the court said: "And, if the jurisdiction has not been exceeded, there is not nor could there be any legal ground of the issuance of the writ of certiorari, because these proceedings can only exclusively be granted to remedy abuses committed in the exercise of a power of jurisdiction. Sections 217 and 514 of the Code of Civil Procedure providing for such relief unequivocally and specifically refer to the act of exceeding or going beyond the jurisdiction; and this court has repeatedly held that, in order that certiorari may issue, it is absolutely held that, in order that certiorari may issue, it is absolutely necessary to show that the respondent has exceeded his power or jurisdiction. (In re Prautch, 1 Phil. Rep., 132; De los Reyes v. Roxas, 1 Phil. Rep., 625; Spinger v. Odlin, 3 Phil. Rep., 344.)"

In the case of Arzadon v. Chanco (14 Phil. Rep., 710); the court decided as follows:" Certiorari is the proper remedy whenever an inferior tribunal, board or officer exercising judicial functions has exceeded its or his jurisdiction, and no appeal, nor any plain, speedy, and adequate remedy exists to correct such excess or extra limitation. (Secs. 217 and 514, Code of Civil Procedure). The jurisdiction of Courts of First Instance to hear and decide election contests is exclusive and final (27 of the Election Law); consequently, decisions rendered by them in the exercise of said jurisdiction cannot be reviewed by means of an appeal. As they are not appealable and as against them no other plain, speedy and adequate remedy exists, it is evident that they constitute a proper subject for the extraordinary remedy of certiorari. Therefore, if the court below has exceeded his jurisdiction in rendering the above-cited decision it is proper to annul the same by virtue of said proceedings.’

In that case the Court of First Instance made the following order : "By the foregoing, Silvestre Arzadon appears to have violated the provisions of the Election law which prohibit every action, influence, and promise of any kind, for the purpose of obtaining votes. These should indicate the free will of the voters, and for such infractions his election for the office of municipal president of the town of Badoc must be considered illegal.

"Therefore, it is decreed by the court that the election of Silvestre Arzadon for the office of president, held on the 5th day of November last in the municipality of Badoc, Ilocos Norte, was not legal, and another special election for the said office must be held at the expense of the said Arzadon who shall not then be eligible, and any vote entered in his favor shall not count; the costs and expenses of these proceedings shall also be charged to him."cralaw virtua1aw library

In respect to that order the Supreme Court said: "It is our opinion that he has so exceeded his jurisdiction. The jurisdiction of Courts of First Instance to hear election protests in conferred upon them by the aforesaid section 27 of the Election Law, and neither the said section 27 of the Election Law, and neither the said section, nor any other legal provision, authorizes the court, in deciding such protests , to declare ineligible in future elections the person against whom the protest was presented, nor to sentence him to pay the expenses of the new election to be held. Hence, the court below had no power to enter such rulings in the case as gave rise to these proceedings, and in consequence thereof said rulings must be entirely annulled."cralaw virtua1aw library

See also Topacio v. Paredes (23 Phil. Rep., 238).

The case of Yangco v. Rohde (1 Phil. Rep., 404) was one relating to the allowance of alimony pending the trial of an active divorce. The court below allowed alimony although the answer denied the marriage. Prohibition was brought in this court and, after hearing, the lower court was enjoined from levying and collecting alimony. The court said at page 414: "The court below had jurisdiction to try the divorce suit, but he was without jurisdiction to grant alimony when the right to claim alimony had not accrued in accordance with the provisions of the Civil Code. This Code only grants the right to alimony to a wife. This status not appearing by a final judgment, the court is without jurisdiction to make any order in the matter."cralaw virtua1aw library

See also U.S. v. Crossfield (24 Phil. Rep., 321); Young Wampo v. Collector of Customs (id., 431).

The reasons given in these cases last cited for the allowance of the writ of prohibition are applicable only to the class of cases with which the decisions deal and do not in any way militate against the general proposition herein asserted. Those which relate to election contests are based upon principle that those proceedings are special in their nature and must be strictly followed, a material departure from the statute resulting in a loss, or in an excess, of jurisdiction. The cases relating to receivers are based, in a measure, upon the same principle, the appointment of a receiver being governed by the statute; and in part upon the theory that the appointment of a receiver in an improper case is in substance a bankruptcy proceeding, the taking of which is expressly prohibited by law. The case relative to the allowance of alimony pendente lite when the answer denies the marriage is more difficult to distinguish. The reasons in support of the doctrine laid down in that case are given in the opinion in full and they seem to place the particular case to which they refer in a class by itself.

It is not a light thing that the lawmakers have abolished writs of error and with them certiorari and prohibition, in so far as they were methods by which the mere errors of an inferior court could be corrected. As instruments to that end they no longer exist. Their place is now taken by the appeal. So long as the inferior court retains jurisdiction its errors can be corrected only by that method. The office of the writ of certiorari has been reduced to the correction of defects of jurisdiction solely and cannot legally be used for any other purpose. It is truly an extraordinary remedy and, in this jurisdiction, its use is restricted to truly extraordinary cases — cases in which the action of the inferior court is wholly void; where any further steps in the case would result in a waste of time and money and would produce no result whatever; where the parties, or their privies, would be utterly deceived; where a final judgment or decree would be nought but a snare and a delusion, deciding nothing, protecting nobody, a judicial pretension, a recorded falsehood, a standing menace. it is only to avoid such results as these that a writ of certiorari is issuable; and even here an appeal will lie if the aggrieved party prefers to prosecute it.

A full and thorough examination of all the decided cases in this court touching the question of certiorari and prohibition fully supports the proposition already stated that, where a Court of First Instance has jurisdiction of the subject matter and of the person, its decision of any question pertaining to the cause, however erroneous, cannot be reviewed by certiorari, but must be corrected by appeal.

It must be remembered that the people of the Philippine Islands may go to the Court of First Instance to require a public officer to perform his duties; and they have the right to have that court pass upon the whole case and upon every phase thereof and upon every question arising therein. This right is conferred by statute. It must be respected by the courts as well as by others. it would be manifestly illegal, as it would be flagrantly unjust, so long as the court acts within its jurisdiction, to withdraw from the Court of First Instance the consideration of that case under color of any proceeding whatever. As long as the court is considering that case, its rights and the rights of the litigants to continue to final determination are inviolate.

The fact that another action may have been pending involving the same subject matter and even between the same parties, which was not the fact in this case, does not touch the jurisdiction of the court to act.

We cannot leave the case without suggesting that the applicant herein, before coming to this court, should, as the better practice, have made the proper application to the Court of First Instance for a dissolution or modification of the mandatory injunction, and thereby given that court an opportunity, after full argument of counsel and citation of authorities, to pass upon the question of his power and jurisdiction and, even, the correctness and propriety of his action, should power and jurisdiction be found by the court to exist. Questions which Courts of First Instance are required by law to decide should not be summarily taken from them and presented to this court without first giving them an opportunity of deliberately passing on such questions themselves. The most natural and proper thing to do, when such court, in the judgment of one of the parties, has issued an injunction erroneously, is immediately to call the attention of that court to its supposed error and ask for its correction. The strongest reasons of policy and courtesy, if not actual legal right itself, require such procedure; an we discourage all attempts to come to this court upon questions which a court below is entitled to decide without first invoking its judgment thereon. There are special reasons for following this course in cases where the court has acted ex parte.

The writ is denied and the proceeding is dismissed. So ordered.

Arellano, C.J., Torres and Mapa, JJ., concur.

Trent, J., concurs in the result.