R E S O L U
T I O N
AUSTRIA-MARTINEZ,
J.:
In a letter-complaint dated
September 29, 1999, complainant Renato Miguel D. Garcia charged
respondent
Pershing T. Yared, Sheriff III, Municipal Trial Court of Canlaon City,
Negros Oriental, with neglect of duty and grave abuse of
authority
charged respondent Pershing T. Yared, Sheriff III, MTCC, Canalon City,
Negros Oriental, with Neglect of Duty and Grave Abuse of Authority
relative
to Civil Cases Nos. 334,[1]
328,[2]
352[3]
and 367., all for the Collection of Sum of Money and Damages.[4]chanrobles virtuallaw libraryred
Complainant is the
President and Manager of the Rural Bank of Guihulngan (Neg. Or.), Inc.,
is the President and Manager of the Rural Bank of Guihulngan (Negros
Oriental),
Inc. which is which is the plaintiff and prevailing party in the Civil
Cases Nos. 334, 328, 352 and 367civil cases, all for collection of sum
of money and damages. He claims that the judgments in said civil
cases remain unsatisfied since the writs of execution therein are not
being
implemented properly and efficiently He alleged that respondent failed
to execute the writs of execution in the following civil cases
"1. Civil Case No. 334
- The last Return of Service was on October 3, 1997 (Annex "A").
, to wit:
The Defendants
in this case are all MTC personnel His previous reports dated
May
7 & 18, 1993 (Annex "B" & "C") states that Rene Ricablanca
&
Juliana Montejar receive from their employer, the Supreme Court of the
Philippines, the amount of P2,630.00 each which is far below poverty
line
(underlining ours). Our heart bleeds for them. But this is
already 1999. Are their salaries still below poverty line?
"2. Civil Case No. 328
- Mr. Yared was able to get an old Karaoke, which was out of order but
still, was sold for P1,000.00. The amount collectible is
P3,706.08
with interest of 1% a month beginning Feb. 26, 1991. No further
action
was taken by Mr. Yared so on Dec. 14, 1992 an Order from the Court was
obtained for an Alias Writ of Execution (Annex "D") for the amount of
P4,908.10.
To date no action has been taken.cralaw:red
"3. Civil Case
No. 352 - Mr. Yared signed a receipt dated Nov. 18, 1998 re receipt of
the Writ of Execution (Annex "E"). Under his First Indorsement
dated
July 1, 1999 (Annex "F") to the Clerk of Court which was received by
the
Bank on Aug. 3, 1999 he sent an estimate of his cost of travel to serve
the alias writ in Cebu City in the amount of P2,000.00. However,
one of the defendants who own a real property here in the locality has
not been served the writ. Why go to Cebu City first? Our
disagreement
was manifested in Court and an ORDER dated July 21, 1999 (Annex "G")
was
issued directing him to look into the records of the office of the
Municipal
Assessor in order not to circumvent the properties and the decision of
the Court. To date no action has been taken.chanrobles virtuallaw libraryred
"4. Civil Case No. 367
- Attached are copies of the return of service of Mr. Yared dated
August 2 & 31, 1999 (Annex "H" and "I"). We are also
providing
photos of the residential houses of Mr. Bernadez, one of the
defendants,
negating his report that Mr. Bernadez owns no personal and real
properties."
On October 27, 1999,
then Court Administrator Alfredo L. Benipayo required respondent to
comment
on the letter-complaint, within ten days from receipt.cralaw:red
In his Answer/Comment
dated November 19, 1999, the respondent explained his side as follows:
Civil Case No. 334 -
Respondent contends that he furnished the defendants with the writ of
execution
but. However, said defendants, who are mere employees of
the
Municipal Trial Court, could not afford to pay the judgment amount,
given
their meager salary of about P2,630.00 a monthEfforts to locate real
or personal properties of defendants yielded negative results. By
virtue
of a court order, an alias writ of execution was issued on September
15,
1997 which was served unsatisfied due to the assertion of the principal
borrowers that he had already made partial payments thereon. A (Return
of Service dated October 3, 1997). A second alias writ dated
August
25, 1998 was issued by the court wherein the total balance therein
stated
already reflected the partial payments made by the defendants but this
was likewise served unsatisfied as shown in the Sheriff's Return dated
November 4, 1998. Respondent adds that the respondent served the
writs upon the defendants using his own money as the plaintiff bank did
not provide him with the amount to defray his expenses.cralaw:red
In Civil Case No. 328
- - Since the proceeds of the sale of the sing-along system was
insufficient,
an alias writ of execution dated December 20, 1992 was issued on motion
of the plaintiff bank. The alias writ was never served on the
defendant
spouses for the reason that it was of judicial notice and public
knowledge
that the couple were jobless, with six mouths to feed and taking care
of
an ailing mother who died in 1998. Plaintiff bank moved for the
seizure
of a refrigerator which for humanitarian reasons and pursuant to Rule
39,
Section 13 (b) of the 1997 Rules of Civil Procedure respondent did not
seize as it was used in their means of livelihood, selling chicken
barbecue
and liquor in a small makeshift store at the side of the national
highway
and, as storage of the medicine of the ailing mother. T.
The
real property of defendant spouses could not be proceeded against as it
has already become an acquired asset of the Philippine National Bank.cralaw:red
In Civil Case No., 352
- For failure of the plaintiff bank to pay the legal fees, -
Respondent
explains that for failure of the plaintiff bank to pay the legal fees,
the Clerk of Court did not issue the writ of execution until the said
legal
fee was finally received. Despite the issuance of the writ on
August
27, 1998, plaintiff bank failed to deposit the fees to defray
respondent's
expenses in going to Cebu City where the principal borrowers
reside.
When plaintiff's bank manager inquired as to the late execution of the
writ respondent reasoned out by citing Bercasio vs. Benito, 205 SCRA
275,
July 14, 1997, to wit:
"The rule requires the
Sheriff executing the writs or processes to estimate the expenses to be
incurred. Upon the approval of the estimated expenses the
interested
party has to deposit the amount with the Clerk of Court and Ex-Officio
Sheriff. These expenses shall then be disbursed to the Executing
Sheriff subject to his liquidation within the same period for rendering
a return on the process or writ. Any unspent amount shall be
refunded
to the party who made the deposit."
Respondent found out
upon inquiry with the Municipal Assessor that the husband of defendant
Fabia Vizano has a real property in his name. Since Fabia's husband is
not himself the defendant, respondent did not attach the same
considering
that he has no authority to attach the property of any person under
execution
except that of the judgment debtor. (Arellano vs. Flojo, 238 SCRA
72). Respondent believed that he should first serve the writ on
the
principal borrowers residing in Cebu City before going against the
co-makers.
In other words, there must first be a showing that the principal
borrower
defaulted in his payment which must be brought to the attention of the
co-makers before proceeding against the latter.chanrobles virtuallaw libraryred
In Civil Case No. 367
- Defendant Leonardo Bernadez has no personal or real properties and
the
house being referred to by complainant which picture he attached in his
complaint is where the defendant and his family reside but the same is
not owned by the defendant but by his son Prem Bernadez.cralaw:red
In his Reply dated August
28, 2000, complainant argues and contends that it is preposterous for
respondent
to claim that the defendants in Civil Case No. 334 have no personal
properties
because even a mere tricycle driver sports a wristwatch nowadays and
televisions
and refrigerators are now considered a must for ordinary households and
even houses in the slums have TV antennas on the rooftops.
Complainant
pointed out that with regards to Civil Case No. 328, respondent
admitted
in his Comment that he did not serve the writ with regards to Civil
Case
No. 328, which citing therein his reasons. According to
complainant,
this constitutes neglect of duty because the duty to serve and
implement
the writ is purely ministerial on his part as Sheriff. Finally,
Anent
Civil Case No. 352, complainant expressed that respondent is playing
judge
in Civil Case No. 352 by stating that he should first exhaust all means
to serve the writ upon the principal borrowers before going against the
co-makers.cralaw:red
In a Resolution dated
August 6, 2001, the Court re-docketed the administrative complaint as a
regular administrative matter and required the parties to manifest
within
ten days from notice if they are willing to submit the case for
decision
based on the pleadings filed.cralaw:red
In compliance therewith,
respondent manifested that he is willing to submit the case for
decision
on the basis of the pleadings already filed which the Court noted in a
Resolution dated October 22, 2001. The complainant filed a letter
dated March 6, 2002 inquiring about the status of the administrative
case
which the Court noted in a Resolution dated May 8, 2002.chanrobles virtuallaw libraryred
However, complainant
did not file his manifestation. Thus, the Court issued a
Resolution
dated November 25, 2002 requiring complainant to show cause why he
should
not be disciplinarily dealt with or held in contempt for failure to
manifest
his willingness to submit the administrative matter for decision based
on the pleadings filed and to comply with the Resolution of August 6,
2001,
both within ten days from receipt.cralaw:red
In a Compliance dated
January 14, 2002, complainant cited "heavy volume of work that he had
to
attend to resulting from numerous requirements imposed by the Bangko
Sentral
ng Pilipinas (BSP) on banks and other equally pressing matters" as
reason
for his failure to manifest before the Court that he is willing to
submit
the case for decision based on the pleadings filed. Not fully
satisfied
with the explanation of complainant, the Court admonished him to be
more
heedful of the orders of the Court in the Resolution dated February 19,
2003.cralaw:red
The Report dated June
14, 2001 of the Office of the Court Administrator (OCA) submitted to
the
Court, reads as follows:
EVALUATION: Relative
to Civil Case No. 334, it is the respondent's contention that he tried
but failed to locate any real or personal property owned by the
defendant
hence the writ thereon was returned unsatisfied. Complainant, on
the other hand, finds it difficult to believe that defendants do not
have
any property not even the basic home appliances like television set and
refrigerators which are considered necessities nowadays. This
bare
allegation of complainant, however, does not in any way overcome the
presumption
that in the absence of contrary evidence, a sheriff has regularly
performed
his official duty (Navale vs. Court of Appeals, 253 SCRA 705).chanrobles virtuallaw libraryred
As to Civil Case No.
328, respondent made an admission that he intentionally did not serve
the
Alias Writ of Execution dated December 20, 1992 upon the defendants for
the reason that the latter are jobless with six mouths to feed and an
ailing
mother to attend to. Such an argument is untenable. Service
of the writ is one thing; satisfaction of the writ is another. He
should have performed his ministerial duty of serving the writ upon the
defendants. If indeed said defendants have no money or property
with
which to pay the judgment amount, then respondent sheriff could return
the writ unsatisfied.cralaw:red
We find nothing irregular
however, on the estimate of travel cost prepared by respondent in Civil
Case No. 352. This is so because part of his duty was to serve
the
writ upon the defendant who resides in Cebu City notwithstanding that
there
are other defendants who reside within the locality.cralaw:red
Anent Civil Case No.
367, the picture submitted by complainant which allegedly shows the
residential
house owned by the defendant therein could not be given credence over
the
bank document submitted by respondent sheriff (Annex "4-I") which tends
to prove that the property actually belongs to the defendant's son who
is not a party to the case.cralaw:red
The OCA recommends that
respondent be reprimanded for his failure to serve the alias writ of
execution
in Civil Case No. 328.cralaw:red
The Court agrees with
the conclusion of the OCA that respondent is guilty of neglect of duty
and grave abuse of authority for his failure to serve the alias writ of
execution in Civil Case No. 328. However, the Court finds that
respondent
is also guilty of neglect of duty and grave abuse of authority in Civil
Cases Nos. 334, 352 and 367.cralaw:red
Section 14 of Rule 39
of the 1997 Rules of Civil Procedure explicitly mandates the manner in
which a writ of execution is to be returned to court, as well as the
requisite
reports to be made by the sheriff or officer, should the judgment be
returned
unsatisfied or only partially satisfied. In any case, every 30
days
until the full satisfaction of a judgment, the sheriff or officer must
make a periodic report to the court on the proceedings taken in
connection
with the writ. Section 14 reads as follows:chanrobles virtuallaw libraryred
"Sec. 14. Return
of writ of execution. - The writ of execution shall be returnable to
the
court issuing it immediately after the judgment has been satisfied in
part
or in full. If the judgment cannot be satisfied in full within
thirty
(30) days after his receipt of the writ, the officer shall report to
the
court and state the reason therefor. Such writ shall continue in
effect during the period within which the judgment may be enforced by
motion.
The officer shall make a report to the court every thirty (30) days on
the proceedings taken thereon until the judgment is satisfied in full,
or its effectivity expires. The returns or periodic reports shall
set forth the whole of the proceedings taken, and shall be filed with
the
court and copies thereof furnished the parties."
(Underscoring
supplied)
Verily, the sheriff
is mandated to execute and make a return on the writ of execution
within
the period provided by the Rules.[5]
In addition, he must make periodic reports on partially satisfied or
unsatisfied
writs in accordance with the above-cited rule, in order that the court
as well as the litigants may be apprised of the proceedings undertaken
in connection therewith. Such periodic reporting on the status of
the writs must be done by the sheriff regularly and consistently every
30 days until they are returned fully satisfied.cralaw:red
Respondent grievously
failed to comply with the mandate of the Rules on periodic
reporting.
His reports were submitted sporadically such that the plaintiff bank in
Civil Cases Nos. 334, 328, 352 and 367 was not regularly informed of
the
actions taken to satisfy the judgment in its favor. Therefore,
the
presumption of regularity of performance of duty cannot be considered
in
favor of respondent. It is almost trite to say that execution is
the fruit and end of the suit and is the life of law.[6]
A judgment, if left unexecuted, would be nothing but an empty victory
for
the prevailing party.[7]
Unless restrained by a court order to the contrary, sheriffs should see
to it that the execution of judgments is not unduly delayed.[8]chanrobles virtuallaw libraryred
The Court also finds
unacceptable the explanation of respondent on the actions he undertook
in the implementation of the writs of execution in Civil Cases Nos.
334,
328 and 352.cralaw:red
The failure to promptly
and efficiently implement the writs of execution in Civil Cases Nos.
334
and 352 cannot be justified by the excuse that the plaintiff bank in
said
civil cases did not give respondent financial assistance to defray
expenses
in serving and implementing the writs. Section 9, Rule 141 of the
Revised Rules of Court provides:
"Sec. 9. Sheriff,
and other persons serving processes.--
x x x x x x
x x x
"(1)
For money collected by him by order, execution, attachment, or any
other
process, judicial or extrajudicial, the following sums, to wit:
"1. On the first four
thousand (P4,000.00) pesos, four (4%) per centum.chanrobles virtuallaw libraryred
"2. On all sums in excess
of four thousand (P4,000.00) pesos two (2%) per centum.cralaw:red
"In addition to the
fees hereinabove fixed, the party requesting the process of any court,
preliminary, incidental, or final, shall pay the sheriff's expenses in
serving or executing the process, or safeguarding the property levied
upon,
attached or seized, including kilometrage for each kilometer of travel,
guards' fees, warehousing and similar charges, in an amount estimated
by
the sheriff, subject to the approval of the court. Upon approval of
said
estimated expenses, the interested party shall deposit such amount with
the clerk of court and ex-officio sheriff, who shall disburse the same
to the deputy sheriff assigned to effect the process, subject to
liquidation
within the same period for rendering a return on the process. Any
unspent
amount shall be refunded to the party making the deposit. A full report
shall be submitted by the deputy sheriff assigned with his return, and
the sheriff's expenses shall be taxed as costs against the judgment
debtor."
(Underscoring supplied)
It is clear that under
the rule, sheriffs are authorized to collect certain specified fees in
specified amounts. The sheriff has to estimate the expenses to be
incurred and upon the court's approval of the estimated expenses the
interested
party has to deposit the amount with the Clerk of Court and the
Ex-officio
Sheriff. These expenses shall then be disbursed to the executing
Sheriff subject to his liquidation within the same period for rendering
a return on the process or writ. Any unspent amount shall be
refunded
to the party who made the deposit.chanrobles virtuallaw libraryred
Respondent admittedly
is well-aware of the foregoing rule. He essentially cited this
rule
to justify the delay in implementing the writ of execution in Civil
Case
No. 352. As the rule provides, respondent need not wait for
the plaintiff bank or its representative to deposit an amount in court
for the expenses in implementing the writ. Respondent was obliged
to estimate the expenses and secure the approval of the issuing court
of
the estimated expenses and fees for immediate implementation of the
writ
of execution. He was duty-bound to collect from the winning party
the expenses and fees for the implementation of the writ of execution.cralaw:red
The non-implementation
of the alias writ of execution in Civil Case No. 328 cannot be
justified
by the allegation that it is "judicial notice and public knowledge that
the couple were jobless, with six mouths to feed and taking care of an
ailing mother who died in 1998". Nor can delayed implementation
of
the writ of execution in Civil Case No. 352 be founded on the argument
that the writ of execution in said case should first be served on the
principal
borrowers residing in Cebu City instead of applying the writ on
properties
of co-makers located in the locality. To exercise compassion and
discretion to the extent that the sheriff substitutes his own standard
of justice for that which has been properly determined in contentious
proceedings
is to encroach upon the power of a judge,[9]
which amounts to a grave abuse of authority.cralaw:red
A sheriff's duty in
the execution of a writ is purely ministerial; he is to execute the
order
of the court strictly to the letter.[10]
He has no discretion whether to execute the judgment or not.[11]
He is mandated to uphold the majesty of the law as embodied in the
decision.[12]
When a writ is placed in the hands of a sheriff, it is his duty, in the
absence of any instructions to the contrary, to proceed with reasonable
celerity and promptness to execute it according to its mandate.[13]
Being the front-line
representative of the justice system, a sheriff must always exert every
effort and, indeed, consider it his bounden duty, to perform his duties
in order to maintain public trust. He must see to it that the
final
stage in the litigation process -- the execution of the judgment -- is
carried out with no unnecessary delay, in order to ensure a speedy and
efficient administration of justice.[14]
A decision left unexecuted or indefinitely delayed due to his neglect
of
duty renders it inutile; and worse, the parties who are prejudiced
thereby
tend to condemn the entire judicial system.[15]chanrobles virtuallaw libraryred
The Court cannot countenance
any act or omission which diminishes or tends to diminish the faith of
the people in the judiciary. To stress that high standards are
expected
of sheriffs as agents of the law and to drive home to all those
involved
in the administration of justice the obligation to perform the duties
of
their office honestly, faithfully and to the best of their ability, the
Court deems it just and reasonable to impose on respondent a fine of
Ten
Thousand Pesos (P10,000.00).cralaw:red
WHEREFORE, respondent
Pershing T. Yared is found guilty of Neglect of Duty and Grave Abuse of
Authority. He is FINED in the amount of Ten Thousand Pesos
(P10,000.00)
with a stern WARNING that a repetition of the same or similar act shall
be dealt with more severely by this Court.cralaw:red
Let copy of herein Resolution
be attached to the personal files of respondent Pershing T. Yared.cralaw:red
SO ORDERED.cralaw:red
Bellosillo, J.,
(Chairman),
Mendoza, Quisumbing and Callejo, Sr., JJ.,
concur.cralaw:red
____________________________
Endnotes:
[1]
Entitled "Rural Bank of Guihulngan (Negros Oriental), Inc. vs. Rene
Ricablanca,
Juliana R. Montejar and Bobby Yap," decided on August 10, 1992.
[2]
Entitled "Rural Bank of Guihulngan (Negros Oriental), Inc. vs. Emma
Epistola,
Bonifacio Epistola, Cristino Rizona and Alice Oliva," decided on
February
26, 1991.
[3]
Entitled "Rural Bank of Guihulngan (Negros Oriental), Inc. vs.
Elizabeth
Vizano, Freddie Vizano, Fabia Vizano and Roman Gonzaga," decided on
February
20, 1996.
[4]
Entitled "Rural Bank of Guihulngan (Negros Oriental), Inc. vs. Luz
Melancolico,
Leonardo Bernadez and Materno Folgo" decided on April 19, 1996.
[5]
Concerned Citizen vs. Torio, A.M. No. P-01-1490, July 11, 2002.chanrobles virtuallaw libraryred
[6]
Villareal vs. Rarama, 247 SCRA 493, 501 (1995); Tan vs. Herras, 195
SCRA
1, 5 (1991).
[7]
Jumio vs. Egay-Eviota, 231 SCRA 551, 554 (1994); Moya vs. Bassig, 138
SCRA
49, 53 (1985).
[8]
Marisga-Magbanua vs. Villamar V, 305 SCRA 132, 137 (1999).chanrobles virtuallaw libraryred
[9]
Santos vs. Gonzales-Munoz, A.M. No. P-02-1628, August 14, 2002.
[10]
Wenceslao vs. Madrazo, 247 SCRA 696, 704 (1995); Eduarte vs. Ramos, 238
SCRA 36, 40 (1994).
[11]
Aristorenas vs. Molina, 246 SCRA 134, 137 (1995); Evangelista vs.
Penserga,
242 SCRA 702 , 709 (1995); Florendo vs. Enrile, 239 SCRA 22, 37 (1994);
Añonuevo vs. Pempeña, 234 SCRA 168, 173 (1994).chanrobles virtuallaw libraryred
[12]
Lapeña vs. Pamarang, 325 SCRA 440, 445 (2000).chanrobles virtuallaw libraryred
[13]
Francisco vs. Cruz, 340 SCRA 76, 85 (2000); Mamanteo vs. Magumun, 311
SCRA
259, 265 (1999); Onquit vs. Binamira-Parcia, 297 SCRA 354, 364 (1998).
[14]
Lacuata vs. Bautista, 235 SCRA 290, 294 (1994).chanrobles virtuallaw libraryred
[15]
Portes vs. Tepace, 267 SCRA 185, 194 (1997).