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[ANDRES MUÑOZ v. DIEGO LOCSIN](https://lawyerly.ph/juris/view/c1cd9?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 45113, Nov 28, 1936 ]

ANDRES MUÑOZ v. DIEGO LOCSIN +

DECISION

63 Phil. 811

[ G. R. No. 45113, November 28, 1936 ]

ANDRES MUÑOZ, PETITIONER, VS. DIEGO LOCSIN, JUDGE OF FIRST INSTANCE OF SORSOGON, AND JULIANA MELENDRERAS VIUDA DE MUNOZ, RESPONDENTS.

D E C I S I O N

ABAD SANTOS, J.:

By this petition  for a writ  of certiorari the petitioner seeks to have set aside an order issued by the respondent judge appointing a  receiver in a suit involving the foreclosure of a mortgage.  The  mortgage proceeding was instituted by the respondent Juliana M. Vda. de Muñoz  and Maria Muñoz against the petitioner Andres Munoz, wherein a judgment by  default was entered together with the usual order.  Upon failure of the petitioner to satisfy the money judgment, the parcels of land covered by the mortgage were sold  at public auction,  and the  respondent Juliana M. Vda. de Muñoz was the purchaser  of one undivided half thereof. The  sale was  subsequently  approved by  the  respondent judge over the objection of the petitioner, who appeared for the first time for the purpose of contesting the  validity of said sale.  From the order of the court approving the sale, an appeal was taken, which is still pending action.

After the perfection of the  appeal, the respondent Juliana M. Vda. de Muñoz filed  a verified petition in the court below for the appointment of a receiver, which was objected to by the  petitioner herein.  Whereupon,  the respondent judge appointed a commissioner to receive evidence in support of the conflicting claims of the parties to the receivership proceeding. The record shows that after hearing the parties  interested, the commissioner submitted  a report to the respondent judge,  and thereafter the challenged order was issued.   A motion for  reconsideration thereof was filed by the petitioner, which motion was  denied by the respondent judge for the reasons stated in the order of denial.

Section 174 of the Code  of Civil Procedure provides that a receiver may be appointed in an action by the  mortgagee for the foreclosure  of a  mortgage where it appears  that the property is in danger of being wasted or materially injured, and that its value is probably insufficient to discharge the mortgage debt. And section 177 provides that:
"If a receiver be appointed upon an ex parte application, the Court, before making the  order, may  require  from the plaintiff or person filing the  application for such appointment, an obligation with sufficient sureties, to be approved by the court, in an amount to be fixed by the court, to the effect that the applicant will pay  to the defendant in the application all damages he may sustain by reason of the appointment of such receiver and the entry by him upon  his duties, in case the applicant shall have procured such appointment without sufficient cause; and the court may,  in its  discretion, at any time after  the appointment, require an additional obligation as further security for such damages  *  *   *."
It will be observed that the  law authorizes the appointment  of a receiver even without a hearing, upon an ex parte application.

In the case now before us, the respondent  judge, after hearing the parties, found that the mortgaged property was in danger of being wasted and that its value was probably insufficient to discharge the mortgage debt.  The mere fact that this  finding was based  partly  on the commissioner's report as to which no hearing was  had,  cannot affect the jurisdiction of the court below to appoint a receiver of the mortgaged property.  And this  court  has held that certiorari will not lie where the irregularities alleged to  have been committed in the appointment of a receiver do not go to the jurisdiction of the appointing court.   (Marquez and Jurado vs. Revilla, 43 Phil., 274.)

That disposes of the real issue in this case. The other points raised by the petitioner are too unsubstantial to require  further discussion.

The petition for a writ of  certiorari is denied, and the preliminary injunction issued herein dissolved,  with costs against the petitioner.  So ordered.

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

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