Monserrat v. Foote

17 P.R. 857

• Court: Supreme Court of Puerto Rico
• Decided: June 21, 1911
• Docket: No. 77
• Status: Published

Opinion

Mr. Justice Aldrey

delivered the opinion of the court.

Damián Monserrat Suro is.prosecuting foreclosure proceedings under the Mortgage Law'in the District Court of Mayagiiez against The American Trading Company to recover an instalment of a mortgage credit. In such proceedings the said company was required to make payment, and the time granted them for the purpose having elapsed, the sale at public auction of the mortgaged property was ordered, the auction having been advertised for the 22cl of the current month.

In the meantime The American Trading Company filed a complaint in the District Court of Ponce against Damián Monserrat Suro praying that the attachment levied and the advertisement of the auction obtained by Monserrat from the District Court of Mayagiiez be annulled, and that the mortgage which guarantees the payment of promissory note No. 5, which is the credit Monserrat holds against the properties of The American Trading Company, be canceled.

At the same time that it filed this complaint The American Trading Company applied for a writ of preliminary injunction prohibiting Monserrat from continuing his proceedings until a new order of the court should issue on the- grounds, that the indorsements on the notes are null, that if the foreclosure proceedings continue it will not have the opportunity to defend its rights, and for other reasons.

The court, on the 12th of this month, issued an order for Monserrat to appear on the 19th and show cause why the writ: of injunction applied for should not issue, and in the meantime restrained the defendant.

Against this order, and for the purpose of annuling the-same, Damián Monserrat Snro applied for a writ of certiorari, taking as grounds therefor the provisions of section 175 of the-rules for the execution of the Mortgage Law. '

The order against which the writ of certiorari is applied for does not decide nor decree the issuance of the writ of' injunction; and as the hearing of the parties was set for a date three days prior to the auction which it was desired to-suspend, in reality it does not appear that up to the present the petitioner has been prejudiced thereby, wherefore a writ of certiorari does not lie.

Moreover, if after the hearing of the parties the court issues the writ of injunction, the petitioner has the right to-appeal from such decision.

For these reasons the application should be denied.

Petition denied.

Chief Justice Hernández and Justices MacLeary, Wolf, and del Toro concurred.