Republic of the Philippines

SUPREME COURT
Manila

G.R. No. L-4268

January 18, 1951

MANILA HERALD PUBLISHING CO., INC., doing business under the name of
Evening Herald Publishing Co., Inc., and Printers, Inc., petitioner,
vs.
SIMEON RAMOS, Judge of the Court of First Instance of Manila, MACARIO A.
OFILADA, Sheriff of City of Manila, ANTONIO QUIRINO and ALTO SURETY AND
INSURANCE CO., INC., respondents.
Edmundo M. Reyes and Antonio Barredo for petitioners.
Bausa and Ampil for respondents.
TUASON, J.:
This is a petition for "certiorari with preliminary injunction" arising upon the following
antecedents:
Respondent Antonio Quirino filed a libel suit, docketed as civil case No. 11531, against
Aproniano G. Borres, Pedro Padilla and Loreto Pastor, editor, managing editor and
reporter, respectively, of the Daily Record, a daily newspaper published in Manila,
asking damages aggregating P90,000. With the filing of this suit, the plaintiff secureda
writ of preliminary attachment upon putting up a P50,000 bond, and the Sheriff of the
City of Manila levied an attachment upon certain office and printing equipment found in
the premises of the Daily Record.
Thereafter the Manila Herald Publishing Co. Inc. and Printers, Inc., filed with the sheriff
separate third-party claims, alleging that they were the owners of the property attached.
Whereupon, the sheriff required of Quirino a counter bound of P41,500 to meet the
claim of the Manila Herald Publishing Co., Inc., and another bond of P59,500 to meet
the claim of Printers, Inc. These amounts, upon Quirino's motion filed under Section 13,
Rule 59, of theRules of Court, were reduced by the court to P11,000 and P10,000
respectively.
Unsuccessful in their attempt to quash the attachment, on October 7, 1950, the Manila
Herald Publishing Co., Inc. and Printers, Inc. commenced a joint suit against the sheriff,
Quirino and Alto Surety and Insurance Co. Inc., in which the former sought (1) to enjoin
the defendants from proceeding with the attachment of the properties above mentioned
and (2) P45,000 damages. This suit was docketed as civil case No. 12263.
Whereas case No. 11531 was being handled by Judge Sanchez or pending in the
branch of the Court presided by him, case No. 12263 fell in the branch of Judge
Pecson. On the same date, in virtue of an ex parte motion in case No. 12263 by the

Manila Herald Publishing Co. Inc., and Printers, Inc., Judge Pecson issued a writ of
preliminary injunction to the sheriff directing him to desist from proceeding with the
attachment of the said properties.
After the issuance of that preliminary injunction, Antonio Quirino filed an ex
parte petition for its dissolution, and Judge Simeon Ramos, to whom case No. 12263
had in the meanwhile been transferred, granted the petition on a bond of P21,000.
However Judge Ramos soon set aside the order just mentioned on a motion for
reconsideration by the Manila Herald Publishing Co. Inc. and Printer, Inc. and set the
matter for hearing for October 14, then continued to October 16.
Upon the conclusion of that hearing, Judge Ramos required the parties to submit
memoranda on the question whether "the subject matter of civil case No. 12263 should
be ventilated in an independent action or by means of a complaint in intervention in civil
case No. 11531." Memoranda having been filed, His Honor declared that the suit, in
case No. 12263, was "unnecessary, superfluous and illegal" and so dismissed the
same. He held that what Manila Herald Publishing Co., Inc., and Printers, Inc., should
do was intervene in Case No. 11531.
The questions that emerge from these facts and the arguments are: Did Judge Ramos
have authority to dismiss case No. 12263 at the stage when it was thrown out of court?
Should the Manila Herald Publishing Co., Inc., and Printers, Inc., come as intervernors
into the case for libel instead of bringing an independent action? And did Judge Pecson
or Judge Ramos have jurisdiction in case No. 12263 to quash the attachment levied in
case No. 11531?
In case No. 12263, it should be recalled, neither a motion to dismiss nor an answer had
been made when the decision under consideration was handed down. The matter then
before the court was a motion seeking a provisional or collateral remedy, connected
with and incidental to the principal action. It was a motion to dissolve the preliminary
injunction granted by Judge Pecson restraining the sheriff from proceeding with the
attachment in case No. 11531. The question of dismissal was suggested by Judge
Ramos on a ground perceived by His Honor. To all intents and purposes, the dismissal
was decreed by the court on its own initiative.
Section 1 Rule 8 enumerates the grounds upon which an action may be dismissed, and
it specifically ordains that a motion to this end be filed. In the light of this express
requirement we do not believe that the court had power to dismiss the case without the
requisite motion duly presented. The fact that the parties filed memoranda upon the
court's indication or order in which they discussed the proposition that the action was
unnecessary and was improperly brought outside and independently of the case for libel
did not supply deficiency. Rule 30 of the Rules of Court provides for the cases in which
an action may be dismissed, and the inclusion of those therein provided excludes any
other, under the familiar maxim, inclusio unius est exclusio alterius. The only instance in
which, according to said Rules, the court may dismiss upon the court's own motion an
action is, when the "plaintiff fails to appear at the time of the trial or to prosecute his

action for an unreasonable length of time or to comply with the Rules or any order of the
court."
The Rules of Court are devised as a matter of necessity, intended to be observed with
diligence by the courts as well as by the parties for the orderly conduct of litigation and
judicial business. In general, it is compliance with these rules which gives the court
jurisdiction to act.
We are the opinion that the court acted with grave abuse of discretion if not in excess of
its jurisdiction in dismissing the case without any formal motion to dismiss.
The foregoing conclusions should suffice to dispose of this proceeding for certiorari, but
the parties have discussed the second question and we propose to rule upon it if only to
put out of the way a probable cause for future controversy and consequent delay in the
disposal of the main cause.
Section 14 of rule 59, which treats of the steps to betaken when property attached is
claimed by the other person than that defendant or his agent, contains the proviso that
"Nothing herein contained shall prevent such third person from vindicating his claim to
the property by any proper action." What is "proper action"? Section 1 of Rule 2 defines
action as "an ordinary suit in court of justice, by which one party prosecutes another for
the enforcement or protection of a right, or the prevention or redress of a wrong," while
section 2, entitled "Commencement of Action," says that "civil action may be
commenced by filing a complaint with the court."
"Action" has acquired a well-define, technical meaning, and it is in this restricted sense
that the word "action" is used in the above rule. In employing the word
"commencement" the rule clearly indicates an action which originates an entire
proceeding and puts in motion the instruments of the court calling for summons, answer,
etc, and not any intermediary step taken in the course of the proceeding whether by the
parties themselves or by a stranger. It would be strange indeed if the framers of the
Rules of Court or the Legislature should have employed the term "proper action" instead
of "intervention" or equivalent expression if the intention had been just that. It was all the
easier, simplier and the more natural to say intervention if that had been the purpose,
since the asserted right of the third-party claimant necessarily grows out of the pending
suit, the suit in which the order of attachment was issued.
The most liberal view that can be taken in favor of the respondents' position is that
intervention as a means of protecting the third-party claimants' right is not exclusive but
cumulative and suppletory to the right to bring a new, independent suit. It is significant
that there are courts which go so far as to take the view that even where the statute
expressly grants the right of intervention is such cases as this, the statute does not
extend to owners of property attached, for, under this view, "it is considered that the
ownership is not one of the essential questions to be determined in the litigation
between plaintiff and defendant;" that "whether the property belongs to defendant or

claimant, if determined, is considered as shedding no light upon the question in

controversy, namely, that defendant is indebted to plaintiff."
(See 7 C. J. S., 545 and footnote No. 89 where extracts from the decision in
Lewis vs. Lewis, 10 N. W., 586, a leading case, are printed.)
Separate action was indeed said to be the correct and only procedure contemplated by
Act No. 190, intervention addition to, but not in substitution of, the old process. The new
Rules adopted section 121 of Act No. 190 and added thereto Rule 24 (a) of the Federal
Rules of Procedure. Combined, the two modes of redress are now section 1 of Rule
13,1 the last clause of which is the newly added provision. The result is that, whereas,
"under the old procedure, the third person could not intervene, he having no interest in
the debt (or damages) sued upon by the plaintiff," under the present Rules, "a third
person claiming to be the owner of such property may, not only file a third-party claim
with the sheriff, but also intervene in the action to ask that the writ of attachment be
quashed." (I Moran's Comments on the Rules of Court, 3rd Ed., 238, 239.) Yet, the right
to inetervene, unlike the right to bring a new action, is not absolute but left to the sound
discretion of the court to allow. This qualification makes intervention less preferable to
an independent action from the standpoint of the claimants, at least. Because
availability of intervention depends upon the court in which Case No. 11531 is pending,
there would be assurance for the herein petitioners that they would be permitted to
come into that case.
Little reflection should disabuse the mind from the assumption that an independent
action creates a multiplicity of suits. There can be no multiplicity of suits when the
parties in the suit where the attachment was levied are different from the parties in the
new action, and so are the issues in the two cases entirely different. In the
circumstances, separate action might, indeed, be the more convenient of the two
competing modes of redress, in that intervention is more likely to inject confusion into
the issues between the parties in the case for debt or damages with which the thirdparty claimant has nothing to do and thereby retard instead of facilitate the prompt
dispatch of the controversy which is underlying objective of the rules of pleading and
practice. That is why intervention is subject to the court's discretion.
The same reasons which impelled us to decide the second question, just discussed,
urge us to take cognizance of and express an opinion on the third.
The objection that at once suggests itself entertaining in Case No. 12263 the motion to
discharge the preliminary attachment levied in case No. 11531 is that by so doing one
judge would intefere with another judge's actuations. The objection is superficial and will
not bear analysis.
It has been seen that a separate action by the third party who claims to be the owner of
the property attached is appropriate. If this is so, it must be admitted that the judge
trying such action may render judgment ordering the sheriff of whoever has in
possession the attached property to deliver it to the plaintiff-claimant or desist from

seizing it. It follows further that the court may make an interlocutory order, upon the filing
of such bond as may be necessary, to release the property pending final adjudication of
the title. Jurisdiction over an action includes jurisdiction over a interlocutory matter
incidental to the cause and deemed necessary to preserve the subject matter of the suit
or protect the parties' interests. This is self-evident.
The fault with the respondents' argument is that it assumes that the Sheriff is holding
the property in question by order of the court handling the case for libel. In reality this is
true only to limited extent. That court did not direct the sheriff to attach the particular
property in dispute. The order was for the sheriff to attach Borres', Padilla's and Pastor's
property. He was not supposed to touch any property other than that of these
defendants', and if he did, he acted beyond the limits of his authority and upon his
personal responsibility.
It is true of course that property in custody of the law can not be interferred with without
the permission of the proper court, and property legally attached is property in custodia
legis. But for the reason just stated, this rule is confined to cases where the property
belongs to the defendant or one in which the defendant has proprietary interest. When
the sheriff acting beyond the bounds of his office seizes a stranger's property, the rule
does not apply and interference with his custody is not interference with another court's
order of attachment.
It may be argued that the third-party claim may be unfounded; but so may it be
meritorious, for the matter. Speculations are however beside the point. The title is the
very issue in the case for the recovery of property or the dissolution of the attachment,
and pending final decision, the court may enter any interlocutory order calculated to
preserve the property in litigation and protect the parties' rights and interests.
None of what has been said is to be construed as implying that the setting aside of the
attachment prayed for by the plaintiffs in Case No. 12263 should be granted. The
preceding discussion is intended merely to point out that the court has jurisdiction to act
in the premises, not the way the jurisdiction should be exercised. The granting or denial,
as the case may be, of the prayer for the dissolution of the attachment would be a
proper subject of a new proceeding if the party adversely affected should be
dissatisfied.
The petition for certiorari is granted with costs against the respondents except the
respondent Judge.
Moran, C.J., Paras, Feria, Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo and
Bautista Angelo, JJ., concur.
1
SECTION 1. When proper. A person may, at any period of a trial, be permitted by
the court, in its discretion, to intervene in an action, if he has legal interest in the matter
in litigation, or in the success of either of the parties, or an interest against both, or when
he is so situated as to be adversely affected by a distribution of other disposition of
property in the custody of the court or of an officer thereof.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-33169 July 30, 1982
GLICERIO JAVELLANA, petitioner,
vs.
HON. CESAR KINTANAR, Judge of the Court of First Instance of Negros
Occidental, CITY OF BAGO, CITY COUNCIL, CITY MAYOR, and CITY TREASURER,
all of the City of Bago, respondents.
G.R. No. L-33212 July 30, 1982
GLICERIO JAVELLANA, petitioner, JUANITO NOVILLAS, ET AL., petitionersintervenors,
vs.
HON. CESAR KINTANAR, Judge of the Court of First Instance of Negros
Occidental, CITY OF BAGO, CITY COUNCIL, CITY MAYOR, and CITY TREASURER,
all of the City of Bago, respondents.
San Juan, Africa, Gonzales & San Agustin Law Offices for petitioner.
Feliciano E. Escaran, Rolando N. Medalla, Fernando C. Divinagracia and Yulo &
Associates for respondents.

ABAD SANTOS, J.:

These are appeals from a decision of the Court of First Instance of Negros
Occidental dated January 12, 1971, which dismissed a petition that sought a
declaration of nullity of Ordinances Nos. 142, 145 and 150, Series of 1968, of the City of
B ago, and to enjoin their enforcement.
Glicerio Javellana is the owner of a market (building and lot) in Crossing Bago, Bago
City, which consists of store spaces and of permanent and movable stalls all leased to
vendors. Serving the general population of the City of Bago and of the adjoining
municipalities, for more than twenty years, said market had been operating under a
Mayor's permit of the City of Bago up to the second quarter of 1968 when the Treasurer
of that city refused to accept the payment of Javellana for a municipal license for the

third quarter on the ground that Ordinance No. 150 had been enacted prohibiting the
establishment, maintenance or operation of a public market in the City of Bago by any
person, entity, association or corporation other than the city government of Bago. This
prompted Javellana, as owner of said market, to file the petition aforementioned.
Juanito Novillas and other store owners, stall holders and fish vendors in Javellana's
market joined in the petition by means of a complaint in intervention.
The appeal of Javellana is docketed as G.R. No. L-33169 while that of Novillas, et al. is
docketed as G.R. No. L-33212.
The ordinances which are the subject of the petition and the present appeal were
enacted by the Municipal Board of Bago City in 1968 and insofar as relevant are
couched in the following language:
Ordinance No. 142.
SECTION 1. Section 1 of Ordinance No. 10, Series of 1954, as
amended by Resolution No. 39, Series of 1955, and adopted by
Ordinance No. 4, Series of 1966, is hereby amended to read as follows:
Section 1. No person or persons, except peddlers thereof who have
paid the corresponding inspection and other market fee, shall sell or offer
for sale, fish, meat and other foodstuffs which are perishable in nature,
outside of the public markets within the City Proper of the City of Bago and
its barrios.
SECTION 2. This ordinance shall take effect upon its approval.
Ordinance No. 145.
SECTION 1. Section 3, Paragraph C of City Ordinance No. 134, Series
of 1968, is hereby amended to read as follows:
Section 3. ...
C Inspection and Inspection Fees:
I All fish, seafoods and other foodstuffs which are perishable in nature
to be sold or offered for sale within the jurisdiction of the City of Bago shag
first be submitted for inspection of the City HealthOfficer of the City and/or
his duly authorized representatives before the same shall be sold or
offered for sale to the public; and such inspection shall be made in the

city-owned public market within the City Proper of the City of Bago and the
corresponding inspection fee of PO.20 is hereby imposed on every case
of fresh fish thus inspected payable by the fish wholesalers, dealers or
'commissionists' concerned.
SECTION 2. This Ordinance shall take effect upon its approval.
Ordinance No. 150.
Section 1. It shall be unlawful for any person, entity, association or
corporation other than the City Government of Bago to establish, maintain
or operate a public market or markets within the city limits or territorial
jurisdiction of the City of Bago.
Section 2. Any person found guilty of violation of the provisions of this
ordinance shall be punished by a fine of not more than Two Hundred
Pesos (P200.00) or imprisonment of not more than six (6) months, or both
such fine and imprisonment in the discretion of the Court. In case the
offender is a juridical person, the president, manager, chief or head of the
entity, association or corporation shall be liable.
Section 3. This Ordinance shall take effect upon its approval.
The appellants claim that the ordinances are unreasonable and Bago City has no power
to enact them.
It is obvious that the key ordinance is No. 150 for if the appellants do not succeed in
assailing it, their assault on the other ordinances becomes moot and academic. Stated
differently, the principal concern of the appellants is the continued operation of
Javellana's market and if it is adjudged that the operation be discontinued they should
have no further interest in the other ordinances. However, it would not be amiss for Us
to state that We do not hesitate and see no need for an extended discussion in holding
that Ordinances Nos. 142 and 145 are manifestly valid; No. 142 because it is a
regulatory and revenue ordinance; No. 145 because it is promotive of general welfare
and both are authorized by Section 15 of R.A. No. 4382, otherwise known as the
Charter of Bago, which spells out in detail the general powers and duties of the
Municipal Board of Bago City. And as the lower court said:
The enactment of these ordinances by the City Council of the City of Bago
is clearly authorized under Section 15 of the said City Charter, as follows:

(a) Paragraph (n) which authorizes said Board 'to regulate

and fix the amount of the license fees for peddlers, and the
keeping, preservation and sale of meat, poultry, fish, game,
butter, cheese, lard, vegetables, bread, and other provisions;
(b) Paragraph (cc) which authorizes said Board 'to provide
for the establishment, maintenance and regulation, and to fix
the fees for the use of public markets;
(c) Paragraph (jj) which authorizes said Board 'to regulate
any other business or occupation, not specifically mentioned
in the preceding paragraphs, and to impose a license fee
upon all persons engaged in the same or who enjoy
privileges in the city; and
(d) Paragraph (mm) the general welfare clause, which
authorizes said Board 'to enact an ordinances it may deem
necessary and proper for the sanitation and safety, the
furtherance of the prosperity, and the promotion of the
morality, peace, good order, comfort, convenience, and
general welfare of the city, and its inhabitants, and such
others as may be necessary to carry into effect and
discharge the powers and duties conferred by this Charter.
Coming now to Ordinance No. 150, there is no question that it was enacted pursuant to
Section 15, paragraph (cc) of the Charter of Bago which empowers the Municipal Board
"... to prohibit the establishment or operation within the city limits of public markets by
any person, entity, association, or corporation other than the city."
The appellants claim that Javellana's market is not covered by the charter provision nor
by the ordinance because it is not a public market. They assert that Javellana's market
is a private market because Javellana "owns the land and the building on which the
market is being maintained and operated." In other words, to the appellants whether or
not a market is "'public" depends on who owns it. It thus appears that the resolution of
the appeals hinges on the meaning of the term "public market." The appellants claim
that a public market is one that is not owned privately; whereas the appellees say that it
is one that serves the general public. Viewed in this light, the validity of Ordinance No.
150, whether on the basis of its reasonableness or on the power of the City of Bago to
enact it, is not in issue; what has to be resolved is only its application to the appellants.

We agree with trial court that the test of a "public market" is its dedication to the service
of the general public and -not its ownership. Thus this Court has had occasion to state:
Petitioners allege that the Aranque Market Extension is not a public
market within the meaning of all laws, ordinances, orders and regulations
governing public markets because said market stands on private property
and its building was erected with private funds. This contention is not well
taken. A market is a public market when it is dedicated to the service of
the general public and is operated under government control and
supervision as a public utility, whether it be owned by the government or
any instrumentality thereof or by any private individual. (Vda. de Salgado
vs. De la Fuente, 87 Phil. 343, 345 [1950].)
Also, a scrutiny of the charter provision win readily show that by public market is meant
one that is intended to serve the public in general. This is the only conclusion which can
be drawn when it used the word "Public" to modify the word 1 "market" for if the
meaning sought to be conveyed is the ownership thereof then the phrase "by any,
person, entity, association, or corporation other than the city" win serve no useful
purpose.
That Javellana's market is a public market is indubitable. According to the decision of
the lower court, "the petitioner himself so declared when he testified that his market is
engaged in servicing the public, not only in Bago City, but also those coming from other
municipalities; that he is renting stalls in his market to the public; that there are around
60 permanent stalls and 50 movable stalls being leased by him; and that his market
services about 3,000 people."
We hold that Javellana's market fans within the scope of Ordinance No. 150 and the
trial court committed no error in so holding and in dismissing the petition as well as the
complaint in intervention.
WHEREFORE, the appeals are dismissed for lack of merit. No special pronouncement
as to costs.
SO ORDERED.
Fernando, C.J., Teehankee, Concepcion, Jr., Guerrero, De Castro, Melencio-Herrera,
Plana, Escolin, Vasquez, Relova and Gutierrez, JJ., concur.
Barredo and Aquino, JJ., took no part.
Makasiar, J., I reserve my vote.