G.R. No. 20662. November 14, 1923

In an action instituted by Silvestre T. Bautista against Leocadio Joaquin for
the recovery of a certain amount of money a writ of attachment was issued
against the property of the defendant.

On January 4, 1921, the trial court ordered the dissolution of the
attachment, because the sureties Antero Escriba and Felipe Capiña gave a bond in
the sum of P7,150.

Judgment was rendered against the defendant Leocadio Joaquin for the sum of
P6,100, plus P1,000 as damages, legal interest and costs. This judgment was
appealed to this court and affirmed in a decision promulgated May 8, 1922.^[1]

The case having been remanded to the court whence it had come, a writ of
execution was issued by that court against the property of the defendant
Leocadio Joaquin. The writ was returned unsatisfied, because no property of the
defendant was found with which to pay the judgment against him.

A petition was then presented for the issuance of a writ of execution against
the sureties Antero Escriba and Felipe Capiña. By an order of September 29,
1922, said petition was set for hearing in the trial court to determine the
value of the property of the defendant that was released from the attachment,
and the trial court denied the motion for the issuance of a writ of execution,
citing sections 428 and 440 of the Code of Civil Procedure in support of said
ruling.

The value of the property attached having been fixed at P14,000 by the trial
court by an order dated January 23, 1923, the trial court ordered the sureties
Antero Escriba and Felipe Capiña to pay the plaintiff the sum of P7,150, which
was the amount of the bond given by them, but refused to issue a writ of
execution against said sureties.

From this order the attorney for the sureties appealed, alleging: (a)
That the trial court erred in ordering the introduction of evidence for
determining the value of the property attached; (b) in holding that the
value of the property attached amounted to the sum of Pl4,000; (c) in
allowing the plaintiff to enforce his rights against the sureties in the same
proceeding; (d) in ordering the sureties to pay the plaintiff the sum of
P7,150; and (e) in denying the motion for new trial.

The trial court ordered the appraisal of the property attached, after the
dissolution of the attachment.

According to section 440 of the Code of Civil Procedure, this appraisal
should have been made at the time the bond was given for the dissolution of the
attachment. However, the fact that said appraisal was made after that time is
not an error justifying the reversal of the order appealed from, inasmuch as the
sureties cannot be compelled to pay more than the amount of the bond given,
although the property attached may be worth double said sum.

The true question to be decided in this appeal is whether or not, under the
circumstances of this case, a writ of execution should issue against the
sureties, who had given a bond for the dissolution of the attachment levied upon
the property of the defendant in view of the insolvency of the latter.

Section 440 of the Code of Civil Procedure provides:

“At any time, after the commencement of an action upon which an order of
attachment has been made, the defendant may upon reasonable notice to the
plaintiff, apply to the judge or justice of the peace who granted the order of
attachment, or to the judge of the court in which the action is pending, for an
order to discharge the attachment, wholly or in part; and the judge or justice
of the peace shall, after hearing, on due notice to both parties, discharge the
order of attachment provided the defendant shall execute an obligation to the
plaintiff with surety to be approved by the judge, or justice of the peace, to
the effect that in case the plaintiff recover judgment in the action, the
defendant will, on demand, redeliver the attached property so released to the
officer of the court, to be applied to the payment of the judgment, or, in
default thereof, that the defendant and surety will, on demand, pay to the
plaintiff the full value of the property released. The judge or justice of the
peace making such order may fix the sum for which the undertaking must be
executed, and for that purpose may take such steps as he finds necessary to
determine the value of the property attached, which obligation shall be filed
with the other papers in the cause, and upon its approval by the judge or
justice of the peace and the making of the order by him for a discharge of the
attachment, all of the property so released, and all of the proceeds of the
sales thereof, shall be delivered to the defendant, the obligation aforesaid
standing in place of the property so released.”

In the case of Molina vs. De la Riva (7 Phil., 345), a judgment was
rendered in favor of the plaintiff, which was appealed to this court and
affirmed with a slight modification. The trial court issued a writ of execution
against the defendant which was not satisfied because no property of the
defendant subject to execution was found. In view thereof the attorney for the
plaintiff petitioned the court that an order be issued requiring the sureties of
the defendant to show cause why a writ of execution should not be issued against
them.

The sureties having appeared and being heard, the trial court entered an
order for the execution of the judgment against the sureties. From this order
the sureties took an appeal. This court held:

“That under the facts stated in the opinion, the sureties on the supersedeas
bond given in this particular case, were jointly and severally liable with the
principal debtor and that an execution might issue against their property
concurrently with the execution against the property of the
principal.”

And this court adds: “The nature of the bond is very plain. Its heading reads
as follows: ‘Appellant’s bond to stay execution of judgment.’ This bond is,
therefore, a judicial bond, and article 1856 of the Civil Code provides that a
judicial surety cannot demand a levy on the property of the principal
debtor.”

In the instant case, the bond given by the sureties-appellants is for the
purpose of obtaining the dissolution of the attachment upon the property of the
defendant, and the undertaking of the sureties is that the property would be
returned to the officer of the court, or they will pay their value, in case the
plaintiff wins the case.

We are not unmindful of the fact that in the case of Green vs. Del
Rosario (43 Phil., 547) this court held that in order that an execution may
issue against a surety on a bond to stay execution, a judgment must first be
obtained against him in an ordinary manner. This case, however, differs from
Molina vs. De la .Riva, supra, and it is clear that the rule of
law in each case must be different. The bond in question in the case of Green
was a purely contractual one unlike the bond in the case of Molina, which was of
a judicial nature. The facts in the Green case are: In a case between Fisher,
plaintiff, and Sellner, defendant, a judgment was rendered against the
defendant. A writ of execution was issued to make the sum awarded in the
judgment. The parties, however, agreed to stay the execution of the judgment for
a certain period and upon certain conditions stipulated by them. Green offered
to guarantee the compliance of the parties’ agreement, and to pay the amount of
the judgment should Sellner fail to comply with his part of the said contract.
This bond being purely contractual between the parties, it is evident ‘that the
surety must be defeated in the proper action before an execution may be issued
against him on his bond.

As above stated, the bond in question in this appeal is of the same nature as
that involved in the Molina case, supra. It was given, to the
satisfaction of the court, to secure the right of the plaintiff, should he
become victorious, to recover the debt of the defendant from the property
attached. It is a bond of a judicial character and, therefore, the property
attached having disappeared, a writ of execution must issue against the property
of the sureties up to the amount of their bond to answer for the value of said
property.

The plaintiff did not appeal from the order of January 23, 1923, as regards
the refusal of the court to issue a writ of execution against the sureties.
However, to do complete justice to the parties and to avoid the institution of a
new litigation upon the same matter, we declare that, in case the appellants
fail to comply with the order of January 23, 1923, the trial court may very well
order the execution of the judgment against the sureties, who have given a bond
in the sum of P7,150 for the dissolution of the attachment levied upon the
property of the defendant, taking into account that their liability, according
to section 440 of the Code of Civil Procedure, is for the delivery of the
property released, or the payment of its value up to the amount of the bond.

Not finding in the record anything to support the errors assigned by the
sureties, the order appealed from is affirmed with costs against the appellants.
So ordered.

Johnson, Street, Malcolm, Avanceña, Johns, and
Romualdez, JJ., concur.

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^[1] R. G. No. 18025, not reported.