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[A.M. No. OCA IPI 99-740-RTJ.January 22, 2001]

BONIFACIO vs. JUDGE BENITO, et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information is a resolution of this Court dated JAN 22 2001 .

A.M. No. OCA IPI 99-740-RTJ (Teresita S. Bonifacio vs. Judge Herminio T Benito, Sheriff IV Renato R. Cervo, both of Regional Trial Court, Branch 132, Makati City, and Atty. Rogelio P. Nogales.)

This is a complaint filed against respondents Judge Herminio T. Benito of the Regional Trial Court, Branch 132, Makati City, Renato R. Cervo, Sheriff IV of said court, and Atty. Rogelio P. Nogales, counsel for plaintiff in Civil Case No. 16194 entitled "Patricia Salamat Villareal, et al. v. Eliseo Sevilla, et al.," docketed also in the same court, for violation of �3(e) of R.A. No. 3019, as amended. The complaint alleges that respondents conspired and cooperated with each other to deprive complainant of her lawful possession of two parcels of land and the improvements thereon, consisting of a building devoted to commercial purposes, notwithstanding the fact that the trial court had allegedly lost jurisdiction to issue a writ of possession and notices of garnishment of the rentals due from the tenants in view of the appeal to the Court of Appeals filed by the defendants in the said case. Complainant claimed ownership of the property in question by virtue of a deed of sale allegedly executed in her favor by the defendant in Civil Case No. 16194 sometime in 1986.

In his Comment, respondent Benito states that judgment by default had earlier been rendered in Civil Case No. 16194 and, upon motion of the plaintiff therein, he granted execution of the judgment as a result of which, the property in question, which was titled under the name of the defendant, was levied upon in preparation for the auction sale. Before the sale could be conducted, complainant, claiming to be the owner of the property, filed an affidavit of third party claim. However, instead of pursuing this remedy, complainant subsequently filed an action before the RTC, Branch 63, Makati City, to have the levy on the property nullified and the scheduled sale enjoined. On November 8, 1994, Branch 63 dismissed the complaint for lack of merit as complainant failed to prove her claim of ownership over the property. She appealed to the Court of Appeals but her appeal was dismissed for her failure to file the appellant's brief. This ruling became final on December 27, 1997. In the meantime, the property in question was sold to the plaintiffs in Civil Case No. 16194.

On the other hand, the defendants in said case filed a petition for certiorari before the Court of Appeals to set aside the judgment by default and all the other orders issued by the trial court subsequent thereto.The appellate court granted the petition, but, on appeal by the plaintiffs, this Court reversed the decision of the Court of Appeals insofar as it annulled the orders of judgment of default and execution pending appeal but directed the trial court to give due course to the defendant's appeal.

Respondent judge states that his order of January 29, 1999, directing respondent Sheriff Renato R. Cervo to, among others, issue a writ of possession and notices of garnishment, was a necessary consequence of the order he had issued on August 14, 1990, granting execution of the default judgment. He said that since the one-year period to redeem the property had expired, the plaintiffs were entitled to possession thereof.

For his part, respondent Sheriff Cervo stated in his comment that he did not commit any irregularity in enforcing the January 29, 1999 order of the trial court as he merely complied thereto. As for the complaint against respondent Nogales, this has been forwarded to the Office of the Bar Confidant for appropriate action.

The Office of the Court Administrator recommends that the complaint be dismissed for lack of merit. It states that complainant filed a motion for reconsideration of the January 29, 1999 order of the trial court which, at the time of the filing of this complaint, had yet to be resolved. It adds that, in any event, complainant's remedy is judicial and not administrative.

The recommendation is well taken. In the absence of fraud, dishonesty, or corruption, the acts of a judge in his judicial capacity are not subject to disciplinary action but rather to judicial review (See Boquiren v. Del Rosario-Cruz, 244 SCRA 702 (1995)). On the other hand, for administrative complaints against court employees to be sustained, the same must be proved by preponderance of evidence.

In this case, complainant has not shown that the issuance of respondent judge's order of January 29, 1999 is tainted with fraud, dishonesty, or corruption. To the contrary, Rule 41, �9 authorizes the trial court to issue orders for the protection and preservation of the rights of the parties prior to the transmittal of the records to the appellate court. It is noteworthy that the records of the case were elevated to the Court of Appeals only on May 19, 1999, after the order in question had been issued.

Complainant's claim that respondent sheriff had no authority to enforce the writ of possession and notices of garnishment since he had been informed of the pending motion for reconsideration is untenable because the January 29, 1999 order was not recalled by the trial court. In addition, complainant is not a party to Civil Case No. 16194 and thus had no standing to intervene in the trial court and file the motion in question.

WHEREFORE, the complaint against respondents Judge Herminio T. Benito and Sheriff Renato R. Cervo of the Regional Trial Court, Branch 132, Makati City, is DISMISSED for lack of merit.

Very truly yours,

(Sgd.) TOMASITA M. DRIS
Clerk of Court


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