FIRST DIVISION

[G.R. No. 33303. January 22, 1931.]

PANAY MUNICIPAL CADASTRE, INC., ET AL. , petitioners, vs . L.

Elpidio Quirino, Joaquin Azarraga and Sumulong, Lavides & Mabanag for
petitioners.
Respondent Josue Soncuya and Maximino Mina for respondents.

SYLLABUS

1. INJUNCTIONS; PRELIMINARY INJUNCTION; ANCILLARY REMEDY. — The

DECISION

STREET , J : p

This is an original application for the writ of certiorari wherein the petitioners
seek an order annulling a preliminary injunction issued by the respondent judge in civil
case No. 2643, of the Court of First Instance of Capiz; and the cause is now before us
upon answer of the respondents and proof submitted by the parties before the clerk of
this court, as commissioner.
On January 28, 1929, the respondent Josue Soncuya led an original complaint in
the Court of First Instance of Capiz (civil case No. 2541) against six individuals of the
surname Azarraga, with whom was joined the husband of the defendant Rosario. The
purpose of said action is to recover damages from the Azarragas for an alleged
misfeasance in procuring a Torrens title to certain property claimed by Soncuya, and for
various acts of waste committed by them in connection with the misappropriation of
the property mentioned, said alleged damages amounting all together to the sum of
more than P125,000. The land out of which the cause of action is supposed to have
arisen consists of four parcels, constituting a portion of the larger of the two lots
described in the original certi cate of title No. 9785, of the registry of Capiz. In
connection with said complaint, the plaintiff Soncuya asked for the inscription of a
notice of lis pendens on certi cate of title No. 9785, and also for a writ of attachment
against two other parcels of land belonging to the defendants and covered by
certi cates of title Nos. 9804 and 10351. In response to this application an attachment
was issued upon the ling of a bond by Soncuya in the amount of P1,000; and the same
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 was levied on the properties covered by the two certi cates last mentioned. On
September 7, 1929, upon motion of the Azarragas, said attachment was discharged by
order of the respondent judge, upon the ling by the Azarragas of a bond in the amount
of P12,500. Upon the ling of said bond the respondent judge also canceled the notice
of lis pendens with respect to the land included in certificate No. 9785.
Prior to the incident above mentioned a corporation had been organized in Capiz
known as the Panay Municipal Cadastre, Inc., for the purpose of effecting a cadastral
survey of lands in the municipality of Kalibo; and the Azarragas had obligated
themselves to said corporation to supply money for the purpose of effecting the
contemplated survey. Furthermore, at the time with which we are dealing, the Azarragas
found themselves without the ready funds to meet said obligation. They therefore
applied to the partnership Hijos de I. de la Rama, one of the plaintiffs in the present
petition, for a loan of P25,000 to be used for the purpose mentioned. This amount the
partnership, hereinafter referred to as the De la Rama rm, agreed to advance the
required loan in monthly installments, at the rate of P3,000 a month. In order to secure
the money thus to be advanced, the Azarragas executed a mortgage in favor of the De
la Rama rm on the land covered by certi cates of title Nos. 9785, 9804, and 10351.
The credit thus procured was intended exclusively for nancing the expenses of the
cadastral survey to be undertaken by the Panay Municipal Cadastre, Inc.; and it was
expressly provided in paragraph 5 of the mortgage that the sums drawn from the De la
Rama firm against the credit mentioned were to be applied exclusively to this purpose.
After the mortgage had been made, and while the original damage suit, (case No.
2541) was pending trial, as it still is, Josue Soncuya, the plaintiff in said action, began,
on October 17, 1929, a second civil action in the Court of First Instance of Capiz against
the Azarragas and the De la Rama rm. By referring to the petitory part of the complaint
in this second action (case No. 2643), it is apparent that the purpose of the action was
to obtain a preliminary injunction to prevent the Azarragas and the De la Rama firm from
carrying into effect the contract secured by the mortgage mentioned. Nevertheless the
Panay Municipal Cadastre, Inc., was not made a party in case No. 2643, although it was
directly interested in the performance of the contract which was sought to be enjoined.
For a more complete elucidation of this point we here transcribe the prayer of the
complaint in case No. 2643, which is as follows:
"For all the foregoing, the plaintiff respectfully prays this court to render
judgment against the defendants, and to immediately issue a writ of injunction
against the same:
"1st, restraining the defendants Azarraga from asking from their
codefendant Hijos de I. de la Rama more money from their credit than that which
corresponds to the first month, if it had already been delivered to them, according
to the mortgage contract aforementioned;
"2nd, restraining at the same time the defendant Hijos de I. la Rama from
delivering to its codefendants any sum on account of the said credit beyond the
amount already delivered;
"3rd, equally restraining all the defendants from rescinding the mortgage
contract aforementioned until further order of the court;
"4th, the plaintiff also prays that a copy of the injunction be remitted to the
register of deeds with instructions to annotate it in the registry and in the
certificates of title Nos. 9785, 9804, and 10351, and to abstain from registering
any annotation relative to transactions with respect to said properties until further
order of the court, and
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 "5th, likewise prays that costs in this case be adjudged against the
defendants Azarraga."
On October 21, 1929, the respondent judge issued an order for the preliminary
injunction in accordance with the prayer of the complaint, upon the ling of an
undertaking by the plaintiff Josue Soncuya in the amount of P2,000; and on the next
succeeding day the preliminary writ of injunction was issued (Exhibit L) enjoining the De
la Rama rm from extending the credit stipulated for in the mortgage and the
Azarragas from receiving any portion of the money intended to be advanced. The
issuance of this writ was followed by a motion for reconsideration and various other
interlocutory proceedings, but His Honor, the respondent judge, refused to abrogate his
order and dissolve the injunction, and it was for the purpose of abrogating the same
that the present petition was led in this court. It may be added, by the way, that on
March 12, 1930, the Panay Municipal Cadastre, Inc., which, according to the mortgage,
was to receive the amounts to be advanced by the De la Rama rm, led a motion in
intervention and moved the respondent judge to set aside and annul the injunction, but
this motion was likewise denied.
From what has been stated it will be seen that the injunctive order against which
relief is sought in this case was issued in a case (No. 2643) in which no other relief is
sought than the issuance of a preliminary injunction in aid of the prior pending action in
case No. 2541. No ultimate substantive relief whatever was sought in this second
action (No. 2643). A perusal of the petitory part of the complaint, transcribe above,
shows this clearly.
Upon these facts it is obvious that the granting of the preliminary injunction
against which relief is sought in this petition was an irregular act and beyond the
jurisdiction of the respondent judge. The preliminary injunction is a purely subsidiary
remedy, available in aid of the right which is to be vindicated in the action wherein the
preliminary injunction is issued. An independent action will not lie merely to obtain a
preliminary injunction. There must be some substantive right to be enforced in the
action in which the preliminary injunction is sought and which right is intended to be
conserved by the injunction. This rule is fundamental; and a contrary practice cannot be
tolerated, since it would tend to a multiplicity of actions and lead to unnecessary
expense in litigation. Any conservative remedy to which the plaintiff might really have
been entitled could have been obtained by motion in the original action (No. 2541).
For the reasons stated the petition must be granted and the order of October 21,
1929, and the subsequent writ of injunction of October 22, 1929, (Exhibits K and L) are
hereby abrogated, as prayed in the petition, with costs against the respondent Josue
Soncuya. So ordered.
Avanceña, C. J., Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ.,
concur.

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