G.R. No. 43700 ; June 27, 1935
JACINTO MAYOL, petitioner, vs. SABINA BLANCO, respondent.

FACTS

Petitioner Jacinto Mayol and respondent Sabina Blanco are spouses separated due to conjugal misunderstanding. Mayol filed a petition for a writ of certiorari seeking to set aside a decision and order of the Court of First Instance of Cebu, which approved a project of partition submitted by commissioners in a case between them. However, Mayol failed to include the judge who rendered the decision as a necessary party to the proceeding. Notably, Mayol had filed a motion for reconsideration of the court’s order approving the partition, raising grounds that the partition was unjust, he lacked notification, and the imposition of expenses was oppressive. This motion remained pending and unresolved at the time the petition for certiorari was filed.

ISSUE

Whether the petition for a writ of certiorari is proper and timely under the circumstances.

RULING

No. The petition is premature and improper. The remedy of certiorari is only available when there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law. Here, Mayol had already filed a motion for reconsideration of the court’s order, which was still pending. Such a motion suspends the running of the period for the order to become final and constitutes an adequate remedy. Since the motion for reconsideration had not yet been resolved, the order was not yet final, and certiorari did not lie. The proceeding was ordered dismissed, with costs against the petitioner.

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