GR 45113; (November, 1936) (Digest)
G.R. No. 45113 ; November 28, 1936
ANDRES MUÑOZ, petitioner, vs. DIEGO LOCSIN, Judge of First Instance of Sorsogon, and JULIANA MELENDRERAS VIUDA DE MUÑOZ, respondents.
FACTS
Petitioner Andres Muñoz seeks to set aside via certiorari an order of respondent Judge appointing a receiver in a mortgage foreclosure suit filed by respondent Juliana M. Vda. de Muñoz. A default judgment was entered against Muñoz, and the mortgaged properties were sold at auction, with Juliana purchasing one undivided half. The sale was approved by the court over Muñoz’s objection, and Muñoz appealed that approval. While the appeal was pending, Juliana filed a verified petition for appointment of a receiver. The respondent Judge, after referring the matter to a commissioner who received evidence and submitted a report, issued the order appointing the receiver. Muñoz’s motion for reconsideration was denied.
ISSUE
Did the respondent Judge act without or in excess of jurisdiction or with grave abuse of discretion in appointing a receiver, such that the remedy of certiorari is proper?
RULING
No. The petition for certiorari is denied. Under Section 174 of the Code of Civil Procedure, a receiver may be appointed in a mortgage foreclosure action where the property is in danger of being wasted or materially injured and its value is probably insufficient to discharge the debt. The law even allows such appointment upon an ex parte application. Here, the respondent Judge, after hearing the parties and considering the commissioner’s report, found the statutory conditions existed. Any alleged irregularity in the procedure, such as basing the finding partly on the commissioner’s report without a separate hearing on it, does not affect the court’s jurisdiction to appoint the receiver. Certiorari does not lie to correct errors of procedure or judgment not amounting to lack or excess of jurisdiction. The Court cited Marquez and Jurado vs. Revilla, holding that certiorari will not lie where the alleged irregularities in a receiver’s appointment do not go to the jurisdiction of the appointing court.
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