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[MARIA D. CABUHAT v. MARCELIANO R. MONTEMAYOR](https://www.lawyerly.ph/juris/view/c1c11?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 45224, Sep 17, 1936 ]

MARIA D. CABUHAT v. MARCELIANO R. MONTEMAYOR +

DECISION

63 Phil. 460

[ G. R. No. 45224, September 17, 1936 ]

MARIA D. CABUHAT, PETITIONER, VS. MARCELIANO R. MONTEMAYOR, JUDGE OF FIRST INSTANCE OF MANILA, JOSE CASIMIRO, SHERIFF OF MANILA, AND THE SPOUSES CIRILO HIPOLITO AND MARTINA TORRES, RESPONDENTS.

D E C I S I O N

IMPERIAL, J.:

The herein petitioner instituted civil case No. 106255 and filed the complaint dated September 11, 1935, in the municipal court  of  the City  of   Manila, to  recover from the defendants, the respondent spouses Cirilo Hipolito and Martina Torres, an indebtedness in the sum  of P156  and to foreclose the mortgage constituted  by them on a piano and a cash register to secure the obligation.   In their answer, the  respondent defendants charged  the  petitioner with usury, alleging that they had not received the entire original loan from  her.  After the  trial, and having  examined all the  evidence presented by the parties, the municipal court, on October 5, 1935, rendered judgment dismissing the action, without  costs.  The judgment became final because the  petitioner  failed to appeal.

Later the petitioner brought civil case No. 106679 against said respondents in the said municipal court, the complaint filed by her being dated October 17, 1935.  The action was the same and it had the same purpose.   The relief sought was  identical.  The only difference between the two  cases was  that in the latter the petitioner asked for the issuance of a writ of attachment upon filing a bond of  P400 which she  was willing to do.  In their answer, the  respondent defendant set up the same defenses and furthermore alleged that the latter action brought by the petitioner  was already res judicata.   After the trial, the municipal court, on November. 19, 1935, rendered judgment  dismissing the action on the ground that it already constitutes res judicata.   The petitioner appealed.  Inasmuch as she had filed a  bond, the writ of attachment was issued and the sheriff attached the  piano  and cash  register and  delivered them to the petitioner.  On appeal and after due trial, the Court of First Instance of Manila,  on  March 31, 1936, rendered judgment holding that the case already constituted res judicata, and dismissed the petitioner's complaint,  with costs.  Subsequently,  it ordered  the  return of the  piano and  cash register to the respondents.  The petitioner filed a motion for a new trial, upon the denial of which she gave notice of her intention to perfect her  appeal, duly presenting  her bill  of exceptions.  It does  not appear whether the bill of exceptions has  already been approved or not. Upon petition  of the respondents,  the  court, in its  order of June 9, 1936, provided for the execution of the judgment so rendered notwithstanding the petitioner's notice of appeal, unless she filed a bond of P400  to secure compliance with the  judgment, in case it should be  affirmed.   The petitioner asked for the reconsideration of the  latter  order and  excepted to the resolution denying it.  She  however filed the bond required of her, which was subscribed by two sureties.  The  court disapproved it because  it did not appear satisfactorily that the sureties were solvent.  The petitioner was given a certain period to prove the solvency of the sureties and, as she failed to file the certificate of the municipal treasurer on time, the  court ordered the execution of the judgment and the delivery of  the  chattels to the respondents.  The  sheriff  executed  it and found only the piano which he delivered to the respondents.   The cash register  is still  in  the  possession of the petitioner.

In her petition for certiorari,  the  petitioner now contends that the  court's order of  June 9, 1936, requiring her to file an additional bond of P400 if she wished to have the execution of the judgment suspended, pending the appeal, is illegal and has been issued with abuse of discretion.

Without  expressly deciding whether or  not  the  court acted with abuse of discretion in requiring the petitioner to file an additional bond in order to suspend the execution of the judgment to which she had excepted, this court holds that the petitioner is  not entitled to  the  extraordinary remedy now sought by her  on  the  ground that  she is estopped therefrom, having consented and submitted to the conditions  of the order of June 9, 1936,  by voluntarily filing the additional bond of P400.  It is not a good policy to permit a party to question an order which he has voluntarily complied  with, when it  has been issued by a court which had  full jurisdiction over the case (11 C.  J.,  pages 138, 139,  sec.  103).   If  the  petitioner wished  the order, which she claimed to have been issued irregularly or with abuse of discretion, reviewed, she should have filed this petition immediately after excepting thereto and should have applied for the  issuance of a writ of preliminary injunction in order to maintain the status quo.  But after having complied therewith, she cannot successfully question  it in certiorari proceedings  because it would be  equivalent  to repudiating her  own acts.

For  the  foregoing reasons,  the remedy  applied for is denied, with costs to the petitioner.  So ordered.

Avanceña, C. J., Villa-Real, Abad Santos, Diaz, and Laurel, JJ.,  concur.

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