GR L 3965; (August, 1907)

EN BANC

G.R. No. L-3965 : August 2, 1907

ENRIQUE F. SOMES, ET AL., plaintiffs,

vs.
A.S. CROSSFIELD AND RAFAEL MOLINA, defendants.

Chicote & Miranda for plaintiffs.
Kinney, Odlin & Lawrence for defendants.

WILLARD, J.:

This is an original action in this court, brought by the plaintiffs, in which they ask for a mandamus to compel the defendant, the judge of the Court of First Instance of Manila, to sign a bill of exceptions. Citation in the ordinary form was served upon the defendants and they have appeared and demurred to the complaint and the case is now before us for a decision of the questions raised by the demurrer. In this case of Cedre et al. vs. Jenkins,¹ decided February 26, 1906, No. 2442, this court said:

The remedy provided in the said section (sec. 499) of the Code of Civil Procedure, which remedy is similar to the recurso de queja provided in the old Spanish Law of Civil Procedure, is quite different from the extraordinary remedy referred to in section 222 and 515 of the present Code of Procedure.

The plaintiffs in this case have mistaken their remedy. They should have proceeded in accordance with said article 499, filing a petition in this court as is provided in said section. That petition is made in the original case and should bear the same title. It is not a new and separate case, but is a remedy given to the parties in the same proceeding.

This action can not be maintained. The demurrer is sustained and the plaintiffs are given five days from the date of this decision in which to file an amended complaint. If they do not so within such time, the clerk, without further order from this court, will enter a final judgment in this action, dismissing the complaint with costs, and without prejudice to the right of the plaintiffs to proceed in accordance with section 499 of the Code of Civil Procedure. So ordered.

Arellano, C.J., Torres, Johnson, and Tracey, JJ., concur.

Footnotes

¹ 5 Phil. Rep., 647.

Batas Pinas