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[ G.R. No. 109941. October 18, 1999]

THE HONORABLE COURT OF APPEALS AND LEONILA TOMACRUZ.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this court dated OCT 18, 1999.

G.R. No. 109941 (The Honorable Court of Appeals and Leonila Tomacruz.)

Private respondent's motion for reconsideration, filed on September 16, 1999, asks the Court to reconsider its August 17, 1999 judgment. Basically, private respondent argues that petitioner is not entitled to the benefit excussion for the following reasons:

1. Petitioner never raised the issue of her entitlement to the benefit of excussion during the pendency of the case before the trial court;

2. Petitioner did not comply with the requirements of article 2060 of the Civil Code; and

3. The principal debtor absconded to the United States, thus giving rise to one of the exceptions to the benefit of excussion as provided for under article 2059 (4) of the Civil Code.

The motion of private respondent fails to mention the fact that the debtor, Rosita B. Luanzon, was never made a party to this case since summons was never served upon her and therefore, the court never acquired jurisdiction over her person. We held in our August 17, 1999 decision that -

.it is premature for this Court to even determine whether or not petitioner is liable as a guarantor and whether she is entitles to the concomitant rights as such, like the benefit of excussion, since the most basic prerequisite is wanting - that is, no judgment was first obtained against the principal debtor Rosita B. Luanzon. It is useless to speak of a guarantor when no debtor has been held liable for the obligation which is allegedly secured by such guarantee.

Article 2062, which is cited by private respondent in support of her claims, does not presume to alter the subsidiary nature of a guarantor's obligation. The article states that-

In every action by the creditor, which must be against the principal debtor alone, except in the cases mentioned in article 2059, the former shall ask the court to notify the guarantor of the action. The guarantor may appeal so that he may, if he so desires, set up such defenses as are granted him by law. the benefit of excussion mentioned in article 2058 shall always be unimpaired, even if judgment should be rendered against the principal debtor and the guarantor in case of appearance by the latter.

In his commentaries, Tolentino explains that "[i]n the cases provided for in article 2059, the guaranty does not lose its character as such; it continues to be an accessory obligation with its legal implications, except that the benefit of excussion and of division disappear. In all other respects it is governed by the same rules that apply to simple guarantee. The guarantor does not become a principal debtor." A. Tolentino, V Civil Code of the Philippines (1992), 514. Thus, even assuming that the exceptions under article 2059 apply, the creditor must still obtain judgment against the principal debtor before going after the guarantor.

Very truly yours,

(Sgd.) JULIETA Y. CARREON

Clerk of Court

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