G.R. No. 20144. March 02, 1923

This is an action commenced originally in this court for the issuance of a
writ of prohibition commanding the Honorable Simplicio del Rosario, Judge of
First Instance of Manila, the sheriff of said court, Ricardo Summers, and Lim
Hong Wan absolutely to abstain and refrain from proceeding against the
petitioner Union Guarantee Co., Ltd., in civil case No. 18074 of said court,
wherein Enrique Legarda Koh is plaintiff, Tan Po O, defendant, and said Lim Hong
Wan, intervenor. It is also prayed in the petition that the writ of execution
issued in that case against the herein petitioner be declared void and of no
effect, that it be given such other remedy as may be just and adequate, and that
it be allowed its costs, and that an ex parte preliminary injunction be
issued enjoining the respondents, until further order of this court, from
attaching or attempting to attach the properties of the petitioner for the
satisfaction of the judgment rendered in said case in favor of Lim Hong Wan.

The writ of preliminary injunction prayed for was issued in the name of this
court by one of its members, Mr. Justice James A. Ostrand, on January 2,
1923.

By a resolution of the 9th of said month of January, 1923, the respondents
were required to demur to, or answer, the petition and, on the 7th of said
month, they filed a demurrer on the ground that the complaint does not state
facts sufficient to constitute a cause of action.

From the facts alleged in the petition and gathered from the documents
attached thereto, the following statement of facts must be made for the better
understanding of the question raised by the parties:

Enrique Legarda Koh brought an action for the replevin of an automobile
against Tan Po O, which is case No. 18074 of the Court of First Instance of
Manila. In the complaint filed therein it was prayed that a writ of replevin be
issued and to that end an affidavit and a bond for P3,000 were attached to the
complaint, as provided by law in those cases. Lim Hong Wan intervened in the
case as a third party claimant and presented for the purpose the corresponding
complaint in which he alleges to be the owner of the automobile in question. In
view of this third party’s claim and in order that the sheriff might proceed
with the seizure of the automobile, the plaintiff Enrique Legarda Koh gave an
indemnity bond to the sheriff under section 270 of the Code of Civil Procedure.
This bond was subscribed by Enrique Legarda Koh as principal and by the Union
Guarantee Co., Ltd., the herein petitioner, as surety, and executed in favor of
the respondent sheriff (Exhibit A). The Court of First Instance of Manila
rendered judgment in favor of the plaintiff, Enrique Legarda Koh, adjudging him
to be the owner and adjudicating to him the title to and possession of the
automobile in question, but sentencing him to pay the intervenor, Lim Hong Wan,
the sum of P1,500, the price of the automobile, with legal interest thereon from
the date of the seizure of said property made by the sheriff. On appeal to this
court, the decision of the lower court was affirmed without costs.

Subsequently, the intervenor Lim Hong Wan moved the Court of First Instance
of Manila to issue a writ of execution upon that judgment against the property
of the Union Guarantee Co., Ltd., the herein petitioner, which opposed such
motion alleging want of jurisdiction over its person. The respondent Judge,
however, issued the writ of execution of said judgment against the property of
the petitioner, the Union Guarantee Co., Ltd., which filed a motion for
reconsideration, but said motion was denied.

The question at issue is whether by virtue alone of the bond executed and
subscribed by the petitioner in favor of the sheriff, in order that the latter
might proceed with the seizure of the automobile in question, notwithstanding
the claim presented by the intervenor Lim Hong Wan, a writ of execution can be
issued against the property of the herein petitioner upon the judgment rendered
against Enrique Legarda Koh as principal in said bond.

In the first place, this bond was executed under the provisions of section
270 of the Code of Civil Procedure which says:

“If the property taken be claimed by any other person than the defendant or
his agent, and such person make an affidavit of his title thereto or right to
the possession thereof, stating the grounds of such right or title, and serve
the same upon the officer while he has possession of the property, the officer
is not bound to keep the property, or.deliver it to the plaintiff, unless the
plaintiff on demand of him or his agent, indemnify the officer against such
claim by an obligation with two sufficient sureties; and no claim to such
property or damage for its seizure, by any other person than the defendant or
his agent, shall be valid against the officer unless so made. But nothing herein
contained shall prevent such third person from vindicating his claim to the
property by any proper action.”

Under these provisions and according to the terms of the bond Exhibit A, it
was given to indemnify the sheriff against any claim of the intervenor to the
property seized or for damages arising from such seizure, which the sheriff was
making and for which the sheriff is directly responsible to the third party
claimant. And as the judgment sought to be enforced was not rendered against
this officer, nor does it appear that any claim whatsoever was presented by the
third party claimant against him, there is no ground upon which an execution
can, by virtue of such judgment, be issued against the petitioner corporation,
for the mere fact of the latter having bound itself in said bond in the manner
aforesaid. It must not be forgotten that the bond cannot be extended beyond the
bounds of its contents (art. 1827, Civil Code).

In the second place, even supposing that this undertaking were executed by
the petitioner directly in favor of the intervenor Lim Hong Wan, or that by
virtue thereof said petitioner had become bound to the latter, there can be also
no ground for issuing an execution upon such judgment against the property of
the surety, inasmuch as it is not a party against whom such judgment was
rendered nor was it summoned or judicially cited, nor heard before issuing such
execution against its property.

In civil cases we have in this jurisdiction no legal provision making a
surety of the kind of the herein petitioner a judgment debtor simply by virtue
of the bond.

Even in cases of supersedeas bond to stay execution of judgment, we have held
in the case of Green vs. Del Rosario (43 Phil., 547) that no execution
can be issued against the surety in such bonds without further judicial
proceeding.

In the case of Molina vs. De la Riva (7 Phil., 345), cited by the
respondents in their favor, the bond in question was also to stay execution of a
judgment. There, the sureties had been summoned by the court to show cause, if
any they had, why the writ of execution should not be issued against them. And
only after they had appeared and been heard by the court that the latter ordered
that the judgment be understood as against those sureties, which order on appeal
to this court was affirmed. There was, therefore, in that case a further
proceeding addressed to the sureties themselves before any execution proceeding
was had against them, by virtue of the bond executed by them. Nothing of this
sort appears to have been done in the present case.

The motion of the intervenor, praying the court for a writ of execution
against the herein petitioner, can in no way be held as the further proceeding
to which reference was made by us as a prerequisite to the issuance of the writ
of execution. Such a proceeding must consist in giving the surety in a positive
and direct manner an opportunity to be heard. The supreme court of Spain, in a
decision rendered May 29, 1897, held that notice of the complaint is necessary,
it not being sufficient that the surety had knowledge of the judicial
proceedings that the creditor was pursuing for the collection of his credit,
although the latter himself should say so.

The demurrer filed by the respondents is overruled and it is ordered that
they answer the complaint within the period fixed by the Rules. So
ordered.

Araullo, C.J., Street, Malcolm, Avanceña, Ostrand, and
Johns, JJ., concur.