The Colegio de San Jose, a corporation sole, instituted these prohibition  proceedings  to prevent the justice of the peace and the auxiliary justice  of the peace of the municipality of Liang,  Province of  Batangas, or any other  person  appointed  and acting in their stead, from continuing the hearing  of civil  cases Nos.  81 to 101,  inclusive, instituted by said college in the aforementioned justice of the peace court.

At the instance of the petitioner,  who gave a two-hundred-peso bond, Justice Street of this court issued a preliminary injunction restraining the aforesaid  justices of the peace from continuing the hearing  of said cases, until further notice.  The writ thus issued was affirmed by this Supreme Court in a resolution dated October 9, 1931.

The facts upon which the petition is based are as follows:

It was about March 20,  1931, when the petitioner filed a number of complaints in the justice of the peace court of Liang, Batangas,  against  the  respondents private individuals, for the recovery of the rents due on  the  portions of land occupied by them as tenants for  the year 1930, the cases thus commenced being numbered 81 to 101, inclusive. Subsequently, the  petitioner filed 80  other  complaints against other tenants for the same purpose of recovering due and unpaid rents for the year 1930.

On April 23,  1931, the date fixed for the hearing of the 21 cases,  the  parties appeared in the justice of the peace court of  Liang through  counsel.  The attorneys for the defendants  applied for assessors  under section 58 of the Code  of Civil Procedure, and  prayed that said assessors, once selected  and qualified, sit  in the trial  of said cases. The justice of the peace  denied the motion on the ground that the municipal  council of Liang had  not supplied  him with a list of  assessors, and that they had not been chosen in accordance  with section 57 of that Code.

That  same  day,  April  23, 1931,  the defendant applied to the Court of First Instance of Batangas  for a writ of mandamus  (civil case No. 2650)  against the petitioner and the justice  of the peace of Liang, alleging that they had been  unlawfully  deprived of their  right to be judged by assessors and praying that said justice of the  peace be compelled to select  the assessors and to admit them to sit in the hearings.

While the proceedings  for mandamus  were pending in the Court of  First Instance of Batangas, no preliminary injunction having been sued out,  the justice of the peace of Liang proceeded  with the hearings.of  the 21 cases pending before him, at  the instance of counsel  for the plaintiff and in the absence of the defendants and their counsel.

While said 21 cases were pending in the  justice of the peace court of Liang, the Court of First Instance of Batangas rendered a judgment in the mandamus proceedings instituted by the defendants in those cases  requiring the justice of  the peace of Liang to try the 21 cases anew,  and to appoint assessors for each of them  to sit with him in accordance with the law.

The petitioner herein took exception and appealed from the judgment  of the Court of First Instance of Batangas in said mandamus proceedings, but the auxiliary judge of the  court, Braulio Bejasa,  pursuant to section 144 of the Code of Civil Procedure, held, that, notwithstanding the appeal, said judgment should be executed, and consequently the  justice of  the peace  should  proceed with the new trial of the aforesaid cases.

The petitioner filed a motion for a new trial in the mandamus case, which was denied by Judge Pedro Ma. Sison, who further ordered the justice of the peace of Liang to proceed immediately with the new trial theretofore ordered.

The petitioner, having excepted to the order denying its motion for a  new trial, filed the bill of  exceptions, which is now pending approval.

The auxiliary justice of the peace of Liang, acting under instructions from the justice of the peace, set the 21 cases for  new trial  on the 8th and 9th of October, 1931, which was suspended by the preliminary injunction issued in the present case.

Counsel for both  parties orally  argued the  merits  of the case at the hearing had; and later filed their  respective memoranda.

In our opinion this case  raises but two important questions :  The first relates to the right claimed by the private respondents to have their cases pending before the justice of the peace tried with the intervention  of assessors; and the second is whether under the circumstances of the case, the Court of First Instance of Batangas  had  the power to order the execution of the judgment in the mandamus proceedings notwithstanding the appeal taken by the petitioner.

With regard to the first question, we have  section 58 of the Code of Civil Procedure granting the parties in a  civil case pending before a justice court the right to be heard with the intervention of assessors, and giving the procedure for their selection by  the parties or their attorneys. This section reads as follows:

"SEC. 58. Rights  of parties  to  have assessors. Either party to an action may apply in writing to the justice of peace, who is to try the action, for assessors to sit in the trial.  Upon the filing of such application the justice shall direct that assessors be provided.  Thereupon  the parties shall be notified forthwith to appear before the justice for the  purpose of selecting assessors, who shall  be selected from the list provided for  in the preceding section,  and shall be  selected in the following manner  in the presence of the justice: The plaintiff shall strike out from the list one  name;  then  the defendant shall strike out one name, and  so,  alternately, the parties shall  strike  out names until but  two remain on  the list.   The  remaining  two shall be  the assessors to sit in the action; but if one or more of  the  two remaining are  disqualified by law  to sit as assessors, then the justice shall draw one or two names, as the case may be, by lot from those stricken  out,  and the  person  or  persons thus drawn  shall act as assessors, as the case may be."

Section 57 of the  same Code prescribes the  manner in which assessors shall be chosen  by the municipal council, and  the preparation of the  list of assessors' name,  to be supplied  to each justice of the peace during the first week of the month of January every year.

An examination of the provisions of section 58 will show that the right thus granted to  the parties to be judged by assessors is absolute, and that the duty imposed upon the justice of the peace is likewise mandatory. Once the petition in  writing has been filed by any of the parties, it is the  duty of the justice of  the peace to grant it, and to proceed to  the selection of the  assessors  in the manner prescribed.  The petitioner  argues that in denying the private respondents' petition for assessors, the justice of the peace did not err,  inasmuch as he had  not been supplied by the municipal council of Liang with  the list mentioned in section  57.  We  are of  opinion that the reason given by the justice of the peace was neither good nor tenable, and  did not exempt him from his imperative duty to grant the petition and to provide for  the selection of the two assessors to which the aforesaid respondents were entitled. Under the circumstances it was his duty to require the municipal council of Liang to supply him  with the list required by the law,  which, according to the complaint filed in the present proceeding, was at once prepared by said municipal council and furnished to the justice of the peace. The respondents could not be deprived of a substantial right granted them by  law.  According to section 62 of the Code of Civil Procedure,  the assessors thus appointed shall after qualifying sit at  the hearings and advise the justice of the peace in the  determination of all questions of facts as well as of law, and in case of their dissent  as  to the merits of the action, they are required by law to certify in writing their dissent, giving the reasons therefor, and such dissent shall be taken into  account by the Court of First Instance in case of appeal.  All these provisions necessarily lead to the conclusion that  the intervention of the assessors is not an  empty formality  which  may  be disregarded without violating either the letter or the  spirit of the law.  It is another security  given by the law to the litigants, and as such, it is a  substantial  right of which they cannot be deprived "without vitiating all the proceedings.   Were we to agree that for one reason or another the trial by assessors may be done away  with, the same line of reasoning would force us to admit that the parties  litigant may be deprived of their right to  be represented by counsel, to appear and be present at  the  hearings, and  so  on, to the  extent of omitting the  trial in a civil case, and thus set at naught the essential rights granted by the law to the parties, with the consequent nullity of all the proceedings.

It would be indeed improper to consider in these proceedings the merits of the judgment  rendered in the mandamus case pending in the Court of First Instance of Batangas, inasmuch as an appeal has been taken from that judgment; nevertheless,  in deciding this petition, we are compelled to pass upon the action of said court with regard to the appointment of assessors.  We are convinced that the court did right in requiring the justice of the peace of Liang to proceed with the appointment of the assessors and the holding of new trials for the reason that those already had were null and void, the defendants and respondents having been  deprived of a substantial right.

With reference to the  last  question, we hold that  the respondent  judges  of first instance did  not exceed their powers but acted within  the discretion granted them by section 144 of the Code of Civil  Procedure in providing for the execution of the judgment rendered in the mandamus case notwithstanding the  appeal  taken by the herein petitioner. For these reasons,  the petition  is  hereby denied, and the preliminary injunction heretofore issued, quashed, with costs  against the petitioner.  So ordered.

Avanceña, C. J., Malcolm,  Villamor,  Romualdez,  and Villa-Real, JJ., concur.

OSTRAND, J.:

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DISSENTING
STREET, J.:

What has happened here, stated in simple terms, is this: One of the judges of the  Court of First Instance of Batangas has issued an order, in  response to an application for the writ of mandamus, directing a new trial in certain cases submitted in the court of a justice of the peace.  There is obviously  no express statutory authority  for  such an intervention on the part of the superior court in the ordinary procedure of the inferior court, and the proper method of correcting errors in such court is by review in the Court of  First Instance upon  appeal.   The  Code of Procedure does  not in express  terms even  confer on the justice of the  peace the right to grant a rehearing or new trial in his own court.   Much less does it, under any circumstance, confer  upon  the Court  of  First  Instance the authority to order a new  trial in the inferior court.  If the provisions  relative to proceedings in the courts of the justice of the peace be carefully examined, it will be found that those provisions are clearly designed  for the accomplishment  of a speedy trial  in  the inferior court and  a quick removal  to the Court  of  First  Instance when the losing party deems himself  aggrieved.  Even under the provisions contained  in sections  148 and 149  of  the  Code of Civil Procedure providing for relief from judgments obtained by  fraud, accident or mistake, the law does not provide for a new trial, or for any trial, in the court of the justice of  the peace, but and  this is remarkable directs that the case be removed at once to the  Court of First Instance for trial there.  It is  obvious that for  a Court of First Instance to  order a new trial in the court of a justice of the peace is directly opposed to the tenor of the procedural law.

Furthermore, the law  governing the removal  of cases from the court of the justice of  the peace  upon appeal to the Court  of First Instance  provides  about as speedy  & remedy as  could be obtained by any other method  of relief, and  a much speedier  remedy  than can be  obtained by  a retrial in the lower court,  to be followed  in  turn by an appeal and third  trial in the  higher court.  In this  connection it should be remembered that the trial in the Court of First Instance is a trial  de  novo, which  means that the Court of First Instance tries  the case without regard to the conclusions reached by the justice of  the peace, and upon the proof adduced in the Court of First Instance only.

With reference to the irregularity which occurred in this case, namely, that at the hearing  in the  court of the justice of the peace assessors were not appointed as requested by the defendant in  that court, it should be observed that the provisions  of law relating  to assessors in  courts of the justice of  the  peace  are  duplicated in the  provisions relating to trials in Courts  of First Instance; and whatever right the defendants may have  had to have  these  cases tried in the presence of assessors would be preserved in the higher court.

In the case before us it cannot be said that the defendants were  prejudiced by  the error committed in the court of the justice of the peace, because when the writ of mandamus was granted by the judge of the Court of First Instance, no judgment at all had been entered in the court of the justice of the peace in favor of anybody, nor has any judgment been there entered  even as yet;  and for aught that this court can know, or properly assume, the judgment might have been favorable to the defendants.

The action of the respondent judge who granted the writ of mandamus was therefore irregular, unwarranted, and in excess of his jurisdiction for the  reasons: First, that the order made involved the granting of a new trial in  a court of the justice  of the peace, when  the law provides for no such remedy; secondly, that the remedy was granted without any showing that the applicant for the writ had  been prejudiced by the procedural  irregularity complained of; and, thirdly, that the remedy by trial de  novo upon appeal was available  to the complaining party,  in case he should have lost, which remedy is a  plainer, speedier,  and more adequate  remedy than that available by a  new trial in the court  of the justice of the peace.

It is evident that the defendants (other than the judges and justices of the peace), having no confidence in their ability to defend the actions brought against them  on the merits,  are merely wasting the time of the court,  and no patience should be indulged in dealing with their  frivolities.  The petition for certiorari should therefore have  been granted by  this court and the order for the  new  trial quashed, with the consequence that the  proper judgment would be  promptly  entered in the court  of the  justice of the peace upon the proof submitted at the hearing on  May 21,  1931,  the losing  party, or parties, being at  liberty to appeal from the judgment if they should so desire.

With those  who  are unversed in the mysteries of legal science it  is a standing  criticism against courts and their methods that we are too much inclined to indulge in legal refinements to the prejudice of the prompt and speedy administration of  justice.   It  is to be  feared that the decision of the court in this  case will not tend to dissipate that error.