
    Viejo & Rodríguez in Liquidation, Petitioners, v. District Court of San Juan, Judge Pablo Berga, Respondent.
    No. 502.
    Argued December 21, 1925.
    Decided January 12, 1926.
    Certiorari. — When remedy by appeal is available tbe extraordinary remedy by certiorari does not lie unless special circumstances require a speedy decision in order to prevent real injury.
    District Court of San Juan, Pablo Berga, J. Certiorari to review judgment in foreclosure proceedings.
    
      Writ discharged.
    
    
      Jacinto Texidor for the petitioner. Luis Muñoz Morales and Antonio Suliveres for the defendant.
   Mr. Justice Aldrey

delivered the opinion of the court.

By virtue of a writ of certiorari issued by this court at the instance of the plaintiffs in a mortgage foreclosure proceeding brought in the District Court of San Juan we have before us the said original proceeding.

In the petition for the writ it was alleged that the two mortgaged properties (one urban and the other rural) were sold to the mortgagees at an auction sale held on August 24, 1925; that on September 2nd the marshal gave partial possession of the properties to the purchasers, it being partial because on the rural property there was a small occupied house and a part of the property was fenced; that the lower court thereafter refused to order that possession of the properties be given to the purchasers, and that although that ruling is appealable, the remedy is not speedy and adequate, because it does not prevent the defendants from continuing in the use and enjoyment of the properties and from causing damages thereon.

At the hearing the defendants appeared by their attorney and moved that the writ be discharged.

From the record it appears that the ruling of the lower court refusing to order giving possession of the properties sold by auction was appealed from by the mortgagee-purchasers on November 18, 1925, before filing their petition in certiorari for a review, and although the writ was issued, we consider it preferable to decide in the appeal the questions involving the lower court’s refusal, because we shall have the aid of written briefs of the parties and because, as a general rule, whenever remedy lies by appeal the extraordinary remedy by certiorari will not be entertained, unless special circumstances require a speedy decision to prevent real injury (Muñoz v. District Court of Ponce, 31 P.R.R. 775, and Acha v. District Court of Ponce, 31 P.R.R. 144), and the allegations in this case do not seem sufficient, taking into account the ambiguity of the petition and what results from the record in regard to the possession of the properties, for although the petitioners pray for possession of the urban and rural properties, they say that the marshal gave them possession, but only partially in the case of the rural property because there is a small occupied house on it and a part of the property is fenced; wherefore, if the damages refer to the small house and to the part of the property that is fenced, it seems to us that they are not of such importance as to warrant deviation from the general rule referred to and for that reason the writ should be discharged.  