
    Müllenhoff & Körber v. Quiñones Et Al., Judges of the District Court of Humacao.
    Petition for a writ of mandamus.
    No. 2.
    Decided June 27, 1903.
    Mandamus. — The writ of mandamus will not issue where there is a plain, ' speedy and adequate remedy at law.
    Id. — Application Must be Specific. — The writ of mandamus will be denied where the application fails to specify particularly what act or acts are required to be performed.
    Effectiveness of Judgments. — Allegations.—All allegations in reference to the effectiveness of judgments must be heard and determined separately in the manner provided by section 14 of the “Act to secure the effectiveness of judgments.”
    STATEMENT OE THE CASE.
    On the 5th of May last, Manuel Argueso and his wife Ernestina Frías brought an action in the District Court of Humacao against the firm oí Müllenhoff & Korber of this City, praying that the said firm be adjudged to execute a deed of purchase and sale within a specified time, of the sugar central factory called “Ingenio”,, situated within the old municipal district of Yabucoa, upon the basis of its rental value during the last three years, excluding the year of the hurricane, should they not find a third person as purchaser thereof within a period which shall likewise be determined, and the payment of damages and costs.
    On the same day (May 5) the plaintiffs prayed the court that, inasmuch as Müllenhoff & Korber had agreed, as set forth in the complaint, not to institute foreclosure proceedings against the estate “Ingenio” for the recovery of mortgage debts acknowledged by plaintiffs in deeds of May 10, 1902, and, as a consequence thereof to execute the deed of purchase and sale requested, and that they be prohibited from attaching or foreclosing upon said estate under penalty of punishment for contempt of court, and at the same time to decree the attachment of sufficient property to Secure the execution of the deed of sale of the estate. The principal complaint having been admitted, the Humacao Court, by an order of May 7, after Argueso and his wife had executed a bond in the sum of two thousand dollars as required by an order of May 21, prohibited the firm of Müllenhoff & Korber from continuing to foreclose upon the estate “Ingenio”, owned by plaintiffs, the said firm being notified that if they failed to comply with the terms of said order they would be punished for contempt of court, without, however, allowing the attachment prayed for, and further ordered the institution of the proper separate proceedings. ,
    
    Notice of this order having been served on Müllenhoff & Korber on, May 29, when they had already raised the question of jurisdiction in the District Court of San Juan requesting that the Humacao Court be enjoined from taking cognizance of the case, said firm through their counsel, Ja-cinto Texidor, filed on the -2nd instant a sworn, application in this Supreme Court, wherein besides stating that the action was not for the fulfillment of an obligation not to do a certain thing, but a presumed obligation consisting in the doing of a thing, namely, the execution of a deed, notwithstanding which, in making the order of May 21, the case was considered as coming under paragraph (d) of section 2 of an act .to secure the effectiveness of judgments, they alleged that they held several mortgage credits against the estate known as “Ingenio”, the recovery whereof by summary proceedings was guaranteed by articles 133 of the Mortgage Law and 175 of the Regulations for the execution thereof. Wherefore they prayed that a peremptory writ of mandamus be issued in the name of “The People of Porto Rico” and directed to the District Court of Humacao, requiring the latter to comply with the provisions of the Mortgage Law and Regulations for the execution thereof, by admitting the foreclosure proceedings instituted or that might be instituted by them against the estate “Ingenio” and the appurtenances thereof, belonging to Manuel Argueso and Ernestina Frías, and leaving without effect the order of May 21, in so far as it prohibits or enjoins the foreclosure procedings for the recovery of said mortgage credits.
    An order having been made requiring the Humacao Court to show cause why the writ of mandamus applied for should not be issued, it opposed the granting of the writ for the reasons stated in its answer, among others, that the order of May 21, was confined to prohibiting Mfillenhoff & Korber from continuing to prosecute foreclosure proceedings against the estate “Ingenio”, which was the object of the proceedings of the cautionary writ of attachment sued out by them in the Municipal Court of Yabucoa for the recovery of an outstanding debt for supplies advanced, and which debt was acknowledged by deed of May 10, 1902; another of said reasons being that the writ of mandamus was an extraordinary remedy to which Mfillenhoff & Korber had resorted instead of the one allowed them under section 14 of an act to secure the effectiveness of judgments.
    
      Mr. Texidor for plaintiffs. »
   Opinion of the Court.

According to section 1 of an act to establish the writ of mandamus, it is a high prerogative writ and therefore it can only be resorted to in the absence of an ordinary remedy for the purpose of obtaining the performance of some act therein specified, appertaining to the office or duty of the person, corporation or authority to whom or to which it is directed.

The application of Müllenhoff & Korber does not specify or determine what act or acts the Humacao Court is required to perform forthwith, for said court is ordered to proceed in accordance with the Mortgage Law and the regulations for the execution thereof, by admitting and allowing the full prosecution of the foreclosure proceedings instituted or that might he instituted by them, against the estate “Ingenio” and its appurtenances; and in view of the general character of this prayer the peremptory writ of mandamus applied for, ordering an act or acts, the execution whereof cannot' be absolute but is subordinate to the proceedings instituted by Müllenhoff & Korber, cannot be issued.

According to.section 14 of an act to secure the effectiveness of judgments, any of the parties may in the course of the proceedings, make allegations in relation to the effectiveness of judgments, which must be heard and determined separately in the manner provided for by said section; and it is therefore obvious that Müllenhoff & Korber may object to the order made by the Humacao Court, on May 21, 1902, and although at the present time they cannot do so, owing to the question of jurisdiction under consideration, immediately upon decision of this question they will be in a position to prosecute such claims as may be deemed by them proper before the court declared to be of competent jurisdiction. It is hereby held that the writ of mandamus applied for by the firm of Müllenhoff & Kdrber, does not lie.

Chief Justice Quiñones, and Justices Hernández and Mac-Leary concurred.

Me. Justice Figueeas

dissenting.

The undersigned dissents from the opinion rendered by the majority of the court, because from the record it appears that an action was instituted for the performance of an obligation which evidently consisted in the doing of a thing, and in spite of this, the remedy provided to enjoin the performance or execution of an apt was demanded and inconsistently allowed, when, for an obligation such as the one claimed, the effectiveness of the judgment to be rendered is fully secured should the action prosecuted prove successful, by the remedy provided in Rule (C) of section 2 of the act passed by the Legislative Assembly of this Island and approved March 1, 1902. Thus, with the least conflict possible, the true harmony that should exist between this act and the Mortgage Law which guarantees the territorial credit is preserved. For these reasons the undersigned is of the opinion that the writ of mandamus applied for should issue and would confine the cautionary measure to Rule (C) of said section 2 of the above mentioned act, whereby the rights of the parties would be fully preserved without prejudice to anyone.  