FIRST DIVISION
[G.R. No. 1688. April 15, 1904. ]
FINDLAY & CO., Petitioners, v. BYRON S. AMBLER, Judge of the Court of First Instance of Manila, Respondent.
Thos. D. Aitken, for Petitioners.
Moore & Hixson, for Respondent.
SYLLABUS
1. PLEADINGS AND PRACTICE; RECEIVER; VOID JUDICIAL ORDER; EXCESS OF JURISDICTION; MANDAMUS. — Where the order appointing a receiver is void because made in excess of jurisdiction, mandamus will lie at the instance of a judgment of creditor to compel the issuance of execution against property of th judgment debtor in the hands of the receiver appointed.
D E C I S I O N
COOPER, J.:
This is an original suit for mandamus brought under section 515 of the Code of Civil Procedure by the plaintiffs, Findlay & Co., against the Ho. B. S. Ambler, judge of the Court of First Instance, to compel him to issue an execution on a certain judgment rendered by him as a judge of the Court of First Instance in the city of Manila, in favor of the plaintiffs, Findlay & Co., against Fulgencio Tan-Tonco, on the 27th day of January, 1903, for the sum of $7,070.19, Mexican currency, with legal interest from the date of the filing of the complaint in said case, and also the costs of the suit.
This suit is of the same character as that of Eugenio Bonaplata v. Byron S. Ambler (1 Off. Gaz., 607 1), decided by this court August 1, 1930. In that case the validity of the appointment of Antonio Torres as receiver of the estate of Tan Tonco in the cause of Sergia Reyes v. Tan Toco was involved, and it was there held that the court in appointing Antonio Torres as receiver of the estate of Tan Tonco acted in excess of its jurisdiction.
The same question has also arisen in other cases growing out of the appointment of receiver in the said case of Sergia Reyes v. Tan Tonco, among them the recent case of Encarnacion v. Ambler, decided on the 8th day of April, 1904. 2
We adhere to the views expressed in these case, ands under their authority a mandamus will be granted.
The defendant, the Hon. B. S. Ambler, judge of the Court of First Instance, is hereby directed to make an order directing the clerk of the Court of First Instance of the city of Manila to issue an execution in favor of the plaintiff and against Fulgencio Tan Tonco on said judgment, rendered on the 27th day of January, 1903, in said Court of First Instance, in said cause of Findlay & Co. v. Fulgencio Tan Tonco.
The cost of the suit is adjudged against the defendant.
Arellano, C.J., Torres, Mapa, McDonough and Johnson, JJ., concur.
This suit is of the same character as that of Eugenio Bonaplata v. Byron S. Ambler (1 Off. Gaz., 607 1), decided by this court August 1, 1930. In that case the validity of the appointment of Antonio Torres as receiver of the estate of Tan Tonco in the cause of Sergia Reyes v. Tan Toco was involved, and it was there held that the court in appointing Antonio Torres as receiver of the estate of Tan Tonco acted in excess of its jurisdiction.
The same question has also arisen in other cases growing out of the appointment of receiver in the said case of Sergia Reyes v. Tan Tonco, among them the recent case of Encarnacion v. Ambler, decided on the 8th day of April, 1904. 2
We adhere to the views expressed in these case, ands under their authority a mandamus will be granted.
The defendant, the Hon. B. S. Ambler, judge of the Court of First Instance, is hereby directed to make an order directing the clerk of the Court of First Instance of the city of Manila to issue an execution in favor of the plaintiff and against Fulgencio Tan Tonco on said judgment, rendered on the 27th day of January, 1903, in said Court of First Instance, in said cause of Findlay & Co. v. Fulgencio Tan Tonco.
The cost of the suit is adjudged against the defendant.
Arellano, C.J., Torres, Mapa, McDonough and Johnson, JJ., concur.
Endnotes:
1. 2 Phil. Rep., 392.
2. Page 623, supra.
