G.R. No. L-26556; January 24, 1969.
MARIA REYES DE TOLENTINO, assisted by her husband LUCIO TOLENTINO, petitioners, vs. HON. GODOFREDO ESCALONA, in his capacity as Presiding Judge, Branch I, Court of First Instance of Leyte, VIRGILIO C. LENTEJAS, in his capacity as Ex-Officio Provincial Sheriff of Leyte, and SINFOROSO B. ANOTA, respondents.

FACTS

Petitioners Maria Reyes de Tolentino and Lucio Tolentino were plaintiffs in Civil Case No. 2799 of the Court of First Instance of Leyte against the spouses Gaspar Llammas and Encarnacion Enriquez de Llamas. They sought the reformation of a deed, claiming it was an equitable mortgage to secure a P2,000 loan, not a pacto de retro sale. Atty. Sinforoso B. Anota represented them. The trial court ruled in their favor on August 2, 1962. The Llamases appealed to the Court of Appeals, where Atty. Jovenal R. Fernandez and Atty. Anota represented the Tolentinos. On March 12, 1964, the Court of Appeals modified the decision, declaring the deed a pacto de retro sale but giving Mrs. Tolentino 30 days from finality to redeem the property for P2,000. She redeemed the lot before June 3, 1964. On October 5, 1964, Atty. Anota filed a petition in the same Civil Case No. 2799 for payment of his attorney’s fees, claiming P6,480.00 or one-third of the lot. The Tolentinos objected and asked the court to fix the fees. On October 31, 1964, respondent Judge Godofredo Escalona fixed the fees at P4,000.00 and made it a lien on the lot. The Tolentinos sought reconsideration, praying for reduction to P2,000.00. On February 27, 1965, Judge Escalona amended his order, reducing the fees to P2,000.00 if judicially consigned by March 20, 1964, otherwise the original P4,000.00 order would stand. The Tolentinos did not consign but filed motions to deduct expenses and further reduce the fees. On May 8, 1965, Judge Escalona denied a motion to strike and directed issuance of a writ of execution for the October 31, 1964 order. A writ was issued, and respondent Sheriff Virgilio C. Lentejas published a notice of sale on August 26, 1965, and sold the land at public auction to Atty. Anota on October 11, 1965. Over eleven months later, on September 16, 1966, the Tolentinos filed this certiorari petition to annul the orders, writ, notice, and sale, claiming the judge abused discretion and exceeded jurisdiction by entertaining the attorney’s fees claim in the main case, that the claim was foreign to the litigation and below the court’s jurisdictional amount, and that they had no plain, speedy, and adequate remedy.

ISSUE

Whether the petition for certiorari is proper to annul the orders and execution proceedings regarding attorney’s fees, given the availability of appeal and the court’s jurisdiction to hear the fee claim in the main action.

RULING

The petition is dismissed. The writ of certiorari is not available because the Tolentinos could have appealed from the contested orders, and an appeal would have been a plain, speedy, and adequate remedy. Their failure to appeal precludes certiorari. Furthermore, the lower court did not exceed its jurisdiction in entertaining the claim for attorney’s fees in Civil Case No. 2799. The question of whether an issue may be taken up in a given case is generally within the court’s sound discretion, exercised in the interest of justice, and does not affect jurisdiction absent a denial of due process, which is not present. The Tolentinos are also estopped from assailing the propriety of the court’s action because they not only failed to object to the court’s jurisdiction over the claim but even asked the court to fix and later reduce the amount, seeking affirmative relief. It is well-settled that a claim for attorney’s fees may be asserted either in the very action where the services were rendered or in a separate action. If asserted in the main action, the court may pass upon the claim even if its amount is below the court’s minimum jurisdictional amount, provided the main action is within the court’s jurisdiction, as the right to recover attorney’s fees is an incident of the case. The court cited precedents, including Palanca v. Pecson and Dahlke v. Viña, supporting that a court which renders judgment may determine attorney’s fees upon proper petition to avoid multiplicity of suits. Therefore, the lower court acted within its jurisdiction.