G.R. No. 144230. September 30, 2003. * ARTURO G. MACKAY, petitioner, vs. HON. ADORACION G. ANGELES, Acting Presiding Judge, RTC, Branch 125, Caloocan City, and ANTONIO G. MACKAY, respondents.

 Remedial Law; Certiorari; Execution; Trial court does not act with grave abuse of discretion in ordering the immediate assumption into office of one who has “been appointed as administrator before the perfection of an appeal from the order appointing him as such, where sufficient reasons exist to order execution pending appeal.—In De Borja v. Tan, we held that the trial court does not act with grave abuse of discretion in ordering the immediate assumption into office of one who has been appointed as administrator before the perfection of an appeal from the order appointing him as such, where sufficient reasons exist to order execution pending appeal. Section 2, Rule 39 of the Rules of Court allow discretionary execution where special reasons or circumstances exist. 

Here, the Court of Appeals affirmed the order of public respondent granting discretionary execution on the ground that the estate of Eufrocina Mackay would be left without an administrator and that the prompt settlement of the estate had already been unduly delayed. As it is the duty of trial courts in which cases are pending for the settlement of estates to expedite the proceedings, and considering further that the trial court is expressly authorized by the Rules of Court to order execution pending appeal, we find no grave abuse of discretion in the trial court’s actuations.

Same; Same; In appeals by certiorari under Rule 45 of the Rules of Court only errors of law may be raised; Remedies of appeal and certiorari are mutually exclusive and not alternative or successive.—As to the third ground for the petition, suffice it to say that the rule is well-settled that in appeals by certiorari under Rule 45 of the Rules of Court, only errors of law may be raised. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. Certiorari as a mode of appeal under Rule 45 should be distinguished from certiorari as an original  action under Rule 65. In an appeal by certiorari, the petition is based on questions of law which the appellant desires the appellate court to resolve. In certiorari as an original action, the only question that may be raised is whether or not the lower court acted without or in excess of jurisdiction or with grave abuse of discretion.

PETITION for review on certiorari of a decision of the Court of Appeals under Rule 45

In that special proceeding, petitioner Arturo was appointed as regular administrator of the intestate estate of deceased Eufrocina G. Mackay on March 20, 1996. 6 After nearly twenty-four (24) months following his appointment, however, petitioner had not submitted the requisite inventory of estate assets and liabilities, nor had he paid the taxes due on the estate

This delay prompted private respondent Antonio G. Mackay to file an urgent motion on  March 10, 1998 for the removal of petitioner as regular administrator

which was duly set for hearing. Despite notices sent to him, petitioner failed to attend any of the scheduled dates of hearing. Consequently, an Order 9 was issued by Judge Adoracion G. Angeles on  July 15, 1998 relieving petitioner Arturo as administrator of the estate and appointing private respondent Antonio as his substitute

Motion for reconsideration - denied

CA denied petitioner’s application for issuance of a temporary restraining order on the ground that petitioner had no clear legal right thereto. 

Essentially, the main question refers to the propriety of the issuance by public respondent of the Order of September 24, 1998 directing the issuance of letters of administration to private respondent. Petitioner argues that the Order appointing private respondent as administrator having been appealed, the same cannot be immediately executed by granting letters of administration to private respondent. It was erroneous for the Court of Appeals, said petitioner, to affirm public respondent’s orders since they were issued in violation of petitioner’s right to appeal and with grave abuse of discretion. Also, according to petitioner, the appellate court is guilty of having acted in excess of jurisdiction when it resolved the question of whether private respondent is qualified for appointment as administrator and the issue of the propriety of petitioner’s ischarge since these issues were not raised in the petition for certiorari filed before it, petitioner added.

SC affirmed CA which denied petitioner Arturo G. Mackay’s petition for certiorari