G.R. No. 19329 ; November 16, 1922
FRANK & COMPANY, INC., petitioner, vs. ENRIQUE CLEMENTE, the Honorable SIMPLICIO DEL ROSARIO and the Honorable M. VIVENCIO DEL ROSARIO, respondents.

FACTS

Petitioner Frank & Company, Inc. filed a case (No. 21937) against Enrique Clemente in the Court of First Instance of Manila. The court issued a temporary restraining order prohibiting Clemente from negotiating certain promissory notes. Clemente filed a motion seeking leave to negotiate the notes, claiming they belonged to Magallanes Press, Inc., which he represented. Petitioner opposed, alleging the notes were owned by Clemente individually. Judge M. Vivencio del Rosario, finding factual issues, set a hearing for the reception of evidence and issued subpoenas for witnesses, including Father Faniels and Jose Ma. Cavanna. The case was later transferred to Judge Simplicio del Rosario. On the hearing date, Father Faniels did not appear. Petitioner requested a postponement, while Clemente moved to quash the proceedings, arguing the witnesses could be examined at the main trial. Judge Simplicio del Rosario vacated the subpoenas and refused to issue new ones. Petitioner then filed this mandamus petition to compel the judge to fix a date for taking depositions and issue subpoenas.

ISSUE

Whether a writ of mandamus lies to compel a judge to take depositions of witnesses in connection with a pending motion.

RULING

No. The petition for mandamus is denied. The taking of depositions by a judge under Section 361 of the Code of Civil Procedure is permissive (“may”), not mandatory. A trial court possesses control and discretion over the proceedings, including the taking of testimony, to prevent abuse and ensure orderly administration of justice. The court may limit witnesses and determine the quantum of evidence needed. Here, the court initially deemed testimony necessary but later decided it was not. This exercise of discretion is judicial and will not be controlled or reviewed by mandamus. Mandamus only lies when the law specifically enjoins a duty; no law specifically enjoins a judge to take depositions under these circumstances. The petitioner may take depositions before other authorized officers but cannot compel a judge to do so via mandamus.