
    Estate of Diaz v. The District Court.
    ApplicatioN for a Writ of Certiorari.
    
    No. 10.
    Decided June 24, 1905.
    Certiorari — Jurisdiction.—The fact that an inferior court has under consideration a motion to dismiss an appeal taken to the Supreme Court and another motion praying for the appointment of an administrator, does not imply that the court has exceeded its jurisdiction to the extent that a writ of certiorari would lie.
    Id. — Compulsory Meeting op Creditors — Bankruptcy.—The writ of certiorari will not issue to prevent a compulsory meeting of creditors from being held as such and to require that the proceedings be had in accordance with bankruptcy procedure.
    Tlie facts are stated in the opinion.
    
      Mr. Jose Guzman Benitez for applicant.
   Mr. Justice Hernández

delivered the opinion of the court.

Attorney Jose de Guzman Benitez, on behalf of the Estate of Maria Diaz, widow of Yeve, filed a sworn application in this court on the 21st instant, praying for the issue of a writ of certiorari requiring the District Court of San Juan to transmit to this superior court the record of the proceedings in the involuntary insolvency of Jose Avalo Sanchez and of everything connected with said insolvency and also of an incidental issue of nullity and execution of the judgment relating thereto, for a review thereof and for the correction and amendment of the errors which said district court is now committing in the proceedings in said matter, and to extend the writ of certiorari to include the record of the execution proceedings prosecuted by Maria Diaz, widow of Yeve, against Jose Avalo Sanchez, which by consolidation therewith forms part of the insolvency proceedings, this court also requiring the District Court of Humacao to forward the facts of said execution proceedings which show the record of the ownership of the “Bello Sitio” plantation in favor of the widow of Yeve.

According to the statement of the petitioning Estate, Jose Avalo Sanchez was adjudged an involuntary insolvent about ten years ago upon the petition of Vicente Baibas Capo, the proceedings being prosecuted before the former Court of First Instance of San Francisco in San Juan, there being consolidated therewith, notwithstanding the objections thereto of the widow of Veve, execution proceedings which she was prosecuting in the Court of First Instance of Humacao against the “Bello Sitio” estate situated in Fajardo, for the recovery of a mortgage credit due her from Jose Avalo Sanchez, which consolidation gave rise to the said estate being made part of the assets of the insolvent and placed under the administration of an assignee, a relative of the insolvent. This estate had been awarded to Maria Diaz, widow of Veve, and later recorded in her favor in the Registry of Property of Humacao, when Vicente Bai-bas Capo, who had applied for the adjudication in insolvency, appeared in the San Juan Court, withdrawing from the prosecution of the general action, said court holding by order of April 25, 1900, that Baibas Capo had withdrawn from and abandoned the prosecution of the insolvency proceedings, and taxed the costs against him. Maria Diaz had attempted without success to be made a party to the insolvency proceedings in order to recover the “Bello Sitio” estate; but one year after the withdrawal, that is to say, on May 15, 1901, the acting presiding judge of the District Court of San Juan, Jose R. Savage, ordered, upon the petition of Maria Diaz, that delivery of the “Bello Sitio” estate be made to her, and she was thus restored to possession thereof, the record of the execution proceedings being returned to the District Court of Humacao. Against this decision Avalo Sanchez raised an incidental issue in the insolvency proceedings to have it annulled, and the present District Court of San Juan, by judgment of May 31st last admitted the incidental issue and as a result annulled the order of May 15, 1901, and ordered that the estate of “Bello Sitio”.be again made part of the assets of the insolvent. From this judgment the Estate of Maria Diaz took an appeal on the 16th instant, before said judgment had been entered in the judgment book of the court, and upon its being entered the following day, it again took an appeal,, the proper petition being presented to the secretary. After the rendition of judgment, Avalo Sanchez made two motions to the court, one for the seizure of the “Bello Sitio” estate,, and the other for the dismissal of the appeal. The 20th instant having been set for a hearing on both motions, the appellant alleged that the district court did not have jurisdiction to take cognizance of either of these motions, because an appeal had been taken from the decision of the incidental issue of nullity, notwithstanding which, said court set the-28th for a hearing of arguments of the parties in order to decide whether the appeal should be allowed or dismissed,, and, in a proper case, to decide the same day on the- petition for the appointment of an assignee in the insolvency proceedings.

With the facts stated as a basis, the applicant alleged that the procedure followed by the District Court of San Juan did not conform to the provisions of the law: (1) Because said district was assuming jurisdiction of involuntary insolvency proceedings, which had been virtually terminated by the withdrawal of the only creditor who petitioned therefor, and this is contrary to the special character of involuntary insolvency proceedings and the provisions of articles 1154, 1156, 1165 and 1167 of the former Law of Civil Procedure, according to-which, when no action is taken by the petitioning creditors, the proceedings are discontinued; and when the proceedings, are discontinued, judicial intervention ceases; (2) Because the San Juan court lacks jurisdiction to hear and decide matters which are the subject of the action appealed after the interposition of the appeal; (3) Because the execution of a judgment cannot be proceeded with when one of the parties has taken an appeal therefrom; (4) Because since the promulgation in Porto Rico of the Organic Act of April 12, 1900,, known as the Forakér Act, involuntary insolvency proceedings can be prosecuted only as an involuntary bankruptcy.

The applicant concludes by alleging that be has no other ordinary remedy under the law to prevent the continuation of the procedure adopted by the District Court of San Juan.

We have carefully considered the’ statements of fact and the provisions of law adduc'ed in support of the prayer that the writ of certiorari applied for issues, and are of The opinion that such writ cannot be granted.

Even though an appeal has been taken from the judgment of May 31, 1901, of the District Court of San Juan, ordering the return to the assets of the insolvent, Avalo Sanchez, of the “Bello Sitio” estate, this does not prevent said court from taking cognizance of the two motions made for the dismissal of .said appeal and the seizure of the “Bello Sitio” estate. Proceedings on such motions do not imply in themselves any extra limitation of jurisdiction, and this particular could be heard only upon a proper appeal after the decision of said motions, and not before.

If the petitioning estate believes that the involuntary insolvency proceedings of Avalo Sanchez cannot be further prosecuted except as an involuntary bankruptcy, let it adopt the measures which may be proper in law.to attain its ends, but a writ of certiorari is not the proper remedy for the purpose.

For the reasons stated, the application for a writ of cer-tiorari should be denied.

Denied.

Chief Justice Quinones and Justices Figueras and Mac-Leary concurred.

Mr. Justice Wolf did not take part in the decision of this case.  