EN BANC
[G.R. No. 36564. February 9, 1933. ]
THE MUNICIPAL GOVERNMENT OF APARRI, Plaintiff-Appellee, v. TOMASA VICTORINO VIUDA DE LIMGENCO, ET AL., Defendants. TOMASA VICTORINO VIUDA DE LIMGENCO, Defendant-Appellant. CHUA UO ET AL., intervenors-appellees.
Marcelo Nubla and Filomeno B. Pascual for Appellant.
Provincial Fiscal Chanco for Plaintiff-Appellee.
Baldomero Pobre and Rosalio T. Valenzuela for intervenors-appellees Say Ham Chong, Que Hok Chi, Chua Pong and Lim Yap.
No appearance for other intervenors-appellees.
SYLLABUS
1. JUDICIAL SALES; PREFERRED CREDITS. — Preference under article 1924 of the Civil Code applies to the funds in the hands of the sheriff, and even if it exists gives no right to prevent the sale of the properties of the judgment debtor to satisfy an execution duly issued.
D E C I S I O N
HULL, J.:
The plaintiff-appellee and the intervening appellees obtained a judgment against Lim Quingsy which became final by the action of this court on December 2, 1929. On the 10th of January, 1930, the defendant-appellant secured an attachment on the properties of Lim Quingsy, and final judgment was rendered in her favor on July 16, 1930. Under the instruction of the appellant the sheriff of the Province of Cagayan was about to sell the attached properties of Lim Quingsy when the appellee secured a temporary injunction which after hearing was made permanent. The case is brought here on appeal and there is no real controversy over the facts. The lower court held that as the appellees had a final judgment prior to the attachment, they are entitled to preference over the attaching creditor, and quoted article 1924, paragraphs 3, subsection of paragraph B, of the Civil Code, which reads:jgc:chanrobles.com.ph
"With respect to the other personal and real property of the debtor, the following credits shall be preferred:chanrob1es virtual 1aw library
"3. Credits which without a special privilege are evidenced by:chanrob1es virtual 1aw library
"B. A final judgment, should they have been the subject of litigation.
"These credits shall have preference among themselves in the order of the priority of dates of the instruments and of the judgments respectively."cralaw virtua1aw library
Even if appellees have a preference under article 1924 (see also Martinez v. Holliday, Wise & Co., 1 Phil., 194; and Kuenzle & Streiff v. Villanueva, 41 Phil., 611, 616, 624), it would apply to the funds in the hands of the sheriff (McMicking v. Lichauco, 27 Phil., 386), but would not give appellees the right to prevent the sale of the properties of the judgment debtor to satisfy an execution duly issued. Injunction not being the proper remedy, the action of the Court of First Instance of Cagayan in issuing a temporary injunction and then, after hearing, making the same permanent must be vacated. Costs against appellees. So ordered.
Avanceña, C.J., Street, Villamor, Ostrand, Villa-Real, Abad Santos, Vickers, Imperial and Butte, JJ., concur.
"With respect to the other personal and real property of the debtor, the following credits shall be preferred:chanrob1es virtual 1aw library
x x x
"3. Credits which without a special privilege are evidenced by:chanrob1es virtual 1aw library
x x x
"B. A final judgment, should they have been the subject of litigation.
"These credits shall have preference among themselves in the order of the priority of dates of the instruments and of the judgments respectively."cralaw virtua1aw library
Even if appellees have a preference under article 1924 (see also Martinez v. Holliday, Wise & Co., 1 Phil., 194; and Kuenzle & Streiff v. Villanueva, 41 Phil., 611, 616, 624), it would apply to the funds in the hands of the sheriff (McMicking v. Lichauco, 27 Phil., 386), but would not give appellees the right to prevent the sale of the properties of the judgment debtor to satisfy an execution duly issued. Injunction not being the proper remedy, the action of the Court of First Instance of Cagayan in issuing a temporary injunction and then, after hearing, making the same permanent must be vacated. Costs against appellees. So ordered.
Avanceña, C.J., Street, Villamor, Ostrand, Villa-Real, Abad Santos, Vickers, Imperial and Butte, JJ., concur.
