July 1968 - Philippine Supreme Court Decisions/Resolutions
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G.R. No. L-25550 July 31, 1968 - PLARIDEL SURETY & INS. CO., v. HON. W. DE LOS ANGELES, ET AL:
EN BANC
[G.R. No. L-25550. July 31, 1968.]
PLARIDEL SURETY & INSURANCE COMPANY, Petitioner, v. HON. W. DE LOS ANGELES, SIMEON BIGLANG-AWA, TOMAS GALVEZ, and CITY SHERIFF OF QUEZON CITY, Respondents.
Carlos, Carballo & Valdez for Petitioner.
Florentino M. Guanlao for respondent Tomas Galvez.
Hermilo Castelo for respondent Simeon Biglang-awa, Et. Al.
SYLLABUS
1. REMEDIAL LAW; PROVISIONAL REMEDIES; REPLEVIN; REPLEVIN BOND; PROCEDURE FOR ENFORCEMENT OF SURETY’S LIABILITY UNDER SUCH BOND; NON-OBSERVANCE THEREOF IN INSTANT CASE. — The herein petitioner, Plaridel Surety and Insurance Co., was included in the writ of execution to pay the sum of P1,450.00 to defendant Biglang-awa, pursuant to its surety’s liability under a replevin bond executed at the instance of plaintiff Tomas Galvez to answer for the return of the carabaos, subject of the litigation. Petitioner moved for reconsideration and/or to quash the writ of execution on the ground that it is contrary to Sec. 10, Rule 60 of the New Rules of Court inasmuch as there was no application for damages made by defendant against the bond and furthermore, the movant was not impleaded as party defendant in the complaint. This motion for reconsideration and/or to quash was denied and an order was issued affirming the questioned order of June 8, 1965 directing that the value of the carabao recovered in the amount of P550.00 be deducted from the replevin bond in the amount of P2,000.00. Petitioner appealed on certiorari to this Court. Held: In order to recover on a replevin bond, the following requisites must be observed: (1) There must be an application showing the right to damages and the amount thereof; (2) Notice of the application for damages must be given to the plaintiff and its surety; (3) There must be a hearing in case the application is opposed; and (4) Any award for damages must be included in the judgment of the court. It has consistently been ruled that the surety may only be held liable if, before judgment becomes final, an order against the surety is entered after a hearing with notice to the surety. The defense that the surety was notified and given the opportunity and time to oppose the motion for execution upon the bond lacks merit on the ground that the notification was made after almost a year after the promulgation of the judgment by the Court of Appeals This belated notification did not cure the tardiness of the claim upon the surety’s liability, which, by mandates of the Rules should have been included in the judgment. The questioned orders are revoked.
D E C I S I O N
ANGELES, J.:
Certiorari proceedings to annul certain orders of the Court of First Instance of Rizal, Quezon City Branch IV, in its Civil Case No. Q-1317.
It appears that on July 9,1954, Tomas Galvez, one of the herein respondents, filed an action for replevin in the then municipal court of Quezon City for the recovery of the nine carabaos against Simeon Biglang-awa. On the same date, the herein petitioner, Plaridel Surety & Insurance Company, at the instance of the plaintiff, executed a bond to answer for the return of the personal properties (carabaos) to the defendant, if the return thereof be adjudged, and for the payment of such sums as may in the cause be recovered against the plaintiff, and costs of suit. 1
After trial, the said municipal court rendered judgment in favor of the plaintiff and against Simeon Biglang-awa, declaring the former as the lawful owner of the carabaos in dispute. On appeal to the Court of First Instance, the judgment was reversed and Biglang-awa was declared the owner of the carabaos. The plaintiff again appealed to the Court of Appeals but failed, for on April 24, 1964, a decision was rendered by that court affirming that of the Court of First Instance.
Almost a year after promulgation of the Court of Appeals decision, or on March 1, 1965, Biglang-awa filed with the Court of First Instance, a motion for execution of the replevin bond posted by the herein petitioner surety in favor of Galvez, and on June 8, 1965, the respondent judge issued the following order:jgc:chanrobles.com.ph
"It appearing from the evidence presented by the defendant that the value of the carabao recovered from the plaintiff by the Sheriff and returned to said defendant is P550.00 and considering that same is supported by Exh. "A", which is the Deed of Absolute Sale covering the carabaos stated above, the Court hereby orders, in accordance with the order of May 31, 1965, that the amount of P550.00 be deducted from the replevin bond in the amount of P2,000.00 and let the corresponding writ of execution be issued."cralaw virtua1aw library
The herein petitioner filed a motion for reconsideration and/or to quash the writ of execution issued in pursuance to the above order, on the ground that the same was improper, irregular, illegal and void, having been issued contrary to Section 10, Rule 60 of the New Rules of Court, inasmuch as there had been no application for damages made by Biglang-awa against the bond; and that, moreover, petitioner had never been impleaded as a party defendant in the complaint. Apparently, this motion was denied when on October 11, 1965, the respondent judge issued another order affirming the order of June 8, 1965. Hence, this petition.
Upon the petitioner’s posting a bond in the amount of P1,000.00, a writ of preliminary injunction, as prayed for, was issued shortly after the filing of the petition, restraining the respondents from enforcing the orders above mentioned.
We find the petition to be meritorious.
In issuing the disputed orders, the lower court, undoubtedly, has overlooked the provision of Section 10, Rule 60 2 governing the procedure for the enforcement of the surety’s liability under a bond for delivery of personal property, which provides:jgc:chanrobles.com.ph
"Sec. 10. Judgment to include recovery against sureties. — The amount if any, to be awarded to either party upon any bond filed by the other in accordance with the provisions of this rule, shall be claimed, ascertained, and granted under the same procedure as prescribed in section 20 of Rule 57."cralaw virtua1aw library
The procedure referred to under Rule 57 3 requires that:jgc:chanrobles.com.ph
". . . such damages may be awarded only upon application and after proper hearing and shall be included in the final judgment. The application must be filed before the trial or before appeal is perfected or before the judgment becomes executory, with due notice to the attaching creditor and his surety or sureties, setting forth the facts showing his right to damages and amount thereof." (Italics ours)
This Court has made a paraphrase of these provisions in People’s Surety & Insurance Co., Inc. v. Aragon, etc. Et. Al., 4 thus:jgc:chanrobles.com.ph
". . . in order to recover on a replevin bond, the following requisites must be observed:jgc:chanrobles.com.ph
"1. There must be an application showing the right to damages and the amount thereof;
"2. Notice of the application for damages must be given to the plaintiff and his surety;
"3. There must be a hearing in case the application is opposed; and
"4. Any award for damages must be included in the judgment of the court."cralaw virtua1aw library
Even in earlier cases, 5 it has consistently been ruled that the surety may only be held liable if, before judgment becomes final, an order against the surety is entered after a hearing with notice to the surety.
While respondents do not deny the non-inclusion of the surety as defendant in the replevin suit, they do assert that the said surety, anyway, was notified and afforded the opportunity and time within which to oppose the motion for execution upon the bond executed by it. This notification, however, which was made after almost a year after the promulgation of the judgment by the Court of Appeals, did not cure the tardiness of the claim upon the liability of the surety, which, by mandate of the Rules, should have been included in the judgment.
IN VIEW OF THE FOREGOING, the questioned orders are hereby revoked. The preliminary injunctive writ issued at the commencement of the proceedings in this court is made permanent, with costs against the respondents.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Fernando, JJ., concur.
It appears that on July 9,1954, Tomas Galvez, one of the herein respondents, filed an action for replevin in the then municipal court of Quezon City for the recovery of the nine carabaos against Simeon Biglang-awa. On the same date, the herein petitioner, Plaridel Surety & Insurance Company, at the instance of the plaintiff, executed a bond to answer for the return of the personal properties (carabaos) to the defendant, if the return thereof be adjudged, and for the payment of such sums as may in the cause be recovered against the plaintiff, and costs of suit. 1
After trial, the said municipal court rendered judgment in favor of the plaintiff and against Simeon Biglang-awa, declaring the former as the lawful owner of the carabaos in dispute. On appeal to the Court of First Instance, the judgment was reversed and Biglang-awa was declared the owner of the carabaos. The plaintiff again appealed to the Court of Appeals but failed, for on April 24, 1964, a decision was rendered by that court affirming that of the Court of First Instance.
Almost a year after promulgation of the Court of Appeals decision, or on March 1, 1965, Biglang-awa filed with the Court of First Instance, a motion for execution of the replevin bond posted by the herein petitioner surety in favor of Galvez, and on June 8, 1965, the respondent judge issued the following order:jgc:chanrobles.com.ph
"It appearing from the evidence presented by the defendant that the value of the carabao recovered from the plaintiff by the Sheriff and returned to said defendant is P550.00 and considering that same is supported by Exh. "A", which is the Deed of Absolute Sale covering the carabaos stated above, the Court hereby orders, in accordance with the order of May 31, 1965, that the amount of P550.00 be deducted from the replevin bond in the amount of P2,000.00 and let the corresponding writ of execution be issued."cralaw virtua1aw library
The herein petitioner filed a motion for reconsideration and/or to quash the writ of execution issued in pursuance to the above order, on the ground that the same was improper, irregular, illegal and void, having been issued contrary to Section 10, Rule 60 of the New Rules of Court, inasmuch as there had been no application for damages made by Biglang-awa against the bond; and that, moreover, petitioner had never been impleaded as a party defendant in the complaint. Apparently, this motion was denied when on October 11, 1965, the respondent judge issued another order affirming the order of June 8, 1965. Hence, this petition.
Upon the petitioner’s posting a bond in the amount of P1,000.00, a writ of preliminary injunction, as prayed for, was issued shortly after the filing of the petition, restraining the respondents from enforcing the orders above mentioned.
We find the petition to be meritorious.
In issuing the disputed orders, the lower court, undoubtedly, has overlooked the provision of Section 10, Rule 60 2 governing the procedure for the enforcement of the surety’s liability under a bond for delivery of personal property, which provides:jgc:chanrobles.com.ph
"Sec. 10. Judgment to include recovery against sureties. — The amount if any, to be awarded to either party upon any bond filed by the other in accordance with the provisions of this rule, shall be claimed, ascertained, and granted under the same procedure as prescribed in section 20 of Rule 57."cralaw virtua1aw library
The procedure referred to under Rule 57 3 requires that:jgc:chanrobles.com.ph
". . . such damages may be awarded only upon application and after proper hearing and shall be included in the final judgment. The application must be filed before the trial or before appeal is perfected or before the judgment becomes executory, with due notice to the attaching creditor and his surety or sureties, setting forth the facts showing his right to damages and amount thereof." (Italics ours)
This Court has made a paraphrase of these provisions in People’s Surety & Insurance Co., Inc. v. Aragon, etc. Et. Al., 4 thus:jgc:chanrobles.com.ph
". . . in order to recover on a replevin bond, the following requisites must be observed:jgc:chanrobles.com.ph
"1. There must be an application showing the right to damages and the amount thereof;
"2. Notice of the application for damages must be given to the plaintiff and his surety;
"3. There must be a hearing in case the application is opposed; and
"4. Any award for damages must be included in the judgment of the court."cralaw virtua1aw library
Even in earlier cases, 5 it has consistently been ruled that the surety may only be held liable if, before judgment becomes final, an order against the surety is entered after a hearing with notice to the surety.
While respondents do not deny the non-inclusion of the surety as defendant in the replevin suit, they do assert that the said surety, anyway, was notified and afforded the opportunity and time within which to oppose the motion for execution upon the bond executed by it. This notification, however, which was made after almost a year after the promulgation of the judgment by the Court of Appeals, did not cure the tardiness of the claim upon the liability of the surety, which, by mandate of the Rules, should have been included in the judgment.
IN VIEW OF THE FOREGOING, the questioned orders are hereby revoked. The preliminary injunctive writ issued at the commencement of the proceedings in this court is made permanent, with costs against the respondents.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Fernando, JJ., concur.
Endnotes:
1. Under Sec. 2, Rule 62 of the old Rules of Court, now Sec. 2, Rule 60.
2. Sec. 10, Rule 62 of the old Rules of Court.
3. Sec. 20, Rule 59 of the old Rules of Court.
4. G.R. No. L-19423, January 31, 1963.
5. Visayan Surety v. Pascual, 85 Phil. 779; Facundo v. Tan, 85 Phil. 249; Aguasin v. Velasquez, 88 Phil. 357; Liberty Construction Supply v. Pecson, 89 Phil. 50; Visayan Surety v. Lacson 96 Phil. 878; and Joseph Abelow v. de la Riva, 105 Phil. 159.
