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PHILIPPINE SUPREME COURT DECISIONS

EN BANC

[G.R. No. 46492. April 26, 1939. ]

RAMON SOTELO, Petitioner, v. ARSENIO P. DIZON, Judge of First Instance of Manila, L. PASICOLAN, Sheriff of the City of Manila, and HARRIE S. EVERETT, Respondents.

Jose Sotelo for Petitioner.

Duran & Lim for Respondents.

SYLLABUS


1. CIVIL ACTIONS; WHEN ACTIONS DEEMED COMMENCED; INTERPRETATION OF SECTION 389 OF THE CODE OF CIVIL PROCEDURE. — Under section 389, a civil action is deemed legally commenced from the date of the filing and docketing of the complaint with the clerk of Court of First Instance, without taking into account the issuance and service of the summons. Section 389 of the Code of Civil Procedure is taken from section 405 of the California Code of Civil Procedure, and the Supreme Court of said State has so interpreted it in Tinn v. United States District Attorney (148 Cal., 773); Dowling v. Comerford (99 Cal., 204); Ex parte Fil Ki (79 Cal., 584); and Nash v. El Dorado County (24 Fed., 252; 1 C. J., sec. 403, PP. 1150 1156).

2. ID.; JURISDICTION; PRELIMINARY INJUNCTION; DAMAGES. — Under the facts the respondent judge had jurisdiction to issue the orders of January 3 and 5, 1939, and he did not exceed the same or the discretion conferred upon him by law in such cases. From the same facts it follows that the preliminary injunction obtained by the petitioner in these proceedings was issued without just cause, wherefore, the petitioner is answerable for damages which he might have caused the respondent E.


D E C I S I O N


IMPERIAL, J.:


This petition for certiorari assails the legality of the order issued by the respondent judge on January 5, 1939, directing the sheriff or any of his agents to execute the order of the 3d of said month appointing R. Marino Corpus receiver, by placing him in possession of the cinematograph business established in the Savoy Theatre, together with its equipment and existing funds.

On July 22, 1938, the respondent Harrie S. Everett brought civil case No. 53411 in the Court of First Instance of Manila against Lazarus Joseph, to recover the ownership and possession of the cinematograph business established in the Fox and Savoy theatres, with its equipment and existing funds. The respondent asked in his complaint that a writ of preliminary injunction be issued. As the then defendant alleged that the cinematograph business had been transferred by him to the partnership Joseph Brothers, the respondent Everett amended his complaint by including as defendants the said partnership and its partners, John Joseph and George Joseph. Everett dropped out his prayer for preliminary injunction and in his amended complaint asked that R. Marino Corpus be appointed receiver to take charge of the properties in litigation during the pendency of the case. On December 16, 1938 the court appointed R. Marino Corpus receiver of the cinematograph business known as Savoy as well as all its equipment and existing funds, ordering him to take possession thereof and administer them in accordance with law after having qualified and filed a bond for P2,000. When the receiver tried to take possession o
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