GR L 46492; (April, 1939) (Digest)
G.R. No. L-46492. April 26, 1939.
RAMON SOTELO, petitioner, vs. ARSENIO P. DIZON, Judge of First Instance of Manila, L. PASICOLAN, Sheriff of the City of Manila, and HARRIE S. EVERETT, respondents.
FACTS
Respondent Harrie S. Everett filed a case to recover ownership and possession of a cinematograph business. The court appointed a receiver for the business on December 16, 1938. When the receiver attempted to take possession, petitioner Ramon Sotelo claimed ownership, having purchased the business from the defendants on December 15, 1938. Everett then filed a supplementary complaint including Sotelo as a defendant. The court admitted the supplementary complaint and reiterated the receivership order on January 3, 1939. On January 5, 1939, the court issued an order directing the sheriff to place the receiver in possession of the properties. Sotelo filed this petition for certiorari, arguing the January 5 order was illegal because no action was pending against him at that time and he had not yet been served with the supplementary complaint.
ISSUE
Whether the respondent judge acted without or in excess of jurisdiction or with grave abuse of discretion in issuing the order of January 5, 1939, directing the sheriff to execute the receivership order, on the grounds that (1) there was no pending action against Sotelo yet, and (2) he had not been duly served with the supplementary complaint.
RULING
The petition is denied. The respondent judge acted within his jurisdiction and discretion.
1. An action was already pending against Sotelo when the January 5 order was issued because the supplementary complaint had been admitted by the court on January 3, 1939.
2. Under Section 389 of the Code of Civil Procedure, a civil action is deemed commenced from the date of the filing and docketing of the complaint with the clerk of court, not from the date of service of summons. Therefore, the action was pending against Sotelo upon the filing of the supplementary complaint, irrespective of when summons was served. The preliminary injunction obtained by Sotelo is set aside, and he may be held liable for damages caused to respondent Everett.
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