THE UNITED STATES, PLAINTIFF AND APPELLANT, VS. EVARISTO PAINAGA, DEFENDANT AND APPELLEE.

This is an appeal by the Government from an order of the Court of First
Instance of the city of Manila, setting aside the forfeiture of a bail bond.
Judgment was rendered against the principal on February 1, and the sureties were
notified on February 7 to produce the body of their principal. On February 28,
the court issued the following order:

“The above-named defendant having been sentenced, and his sureties having
been notified to produce his body before the court, and having failed to do so
after due notice.

“It is ordered, That the defendant’s bond be forfeited and execution
issued against the principal and the sureties for the amount thereof, and that
an alias warrant be issued for the arrest of the defendant.”

Execution issued on March 5, property of the bondsmen was levied upon on
March 13, and the sale was first advertised to take place on April 10, 1912. By
various orders of the court, the sale was postponed from time to time, and
finally occurred on July 8, 1912, the Government being the purchaser. On July
10,1912, the principal was arrested by the secret service corps. Under date of
July 13, 1912, the court, on application of the sureties, set aside the order
forfeiting the bond, and ordered the sheriff & annul the sale of the
property. It is these orders to which exceptions have been taken by the
Government.

The question which first arises is, Did the execution sale occur on the date
directed by the court? Section 4 of the Code of Civil Procedure provides:

“Unless otherwise specially provided, the time within which an act is
required by law to be done shall be computed by excluding the first day and
including the last; and if the last be a Sunday or a legal holiday, it shall be
excluded.”

The last postponement of the sale dated from June 24, 1912. If the court
directed that the postponement be for two weeks, it is clear that the last day
of the last extension of time was July 8, from 12 midnight to 12 midnight. (Art.
7, Civil Code.) So that, in order to allow a full two weeks from June 24, the
sale should not have occurred until some time during July 9, at the earliest.
The sale was postponed four times. The last two postponements were made by
verbal orders of the court, the only evidence of the same in the record as to
their import being the return of the sheriff. The return says:

“On June 21, 1912, under a verbal order of the court, the sale announced was
suspended for another three days; wherefore, the sale was again announced for
the 24th of said month of June at the same hour.

“On June 24, 1912, and under another verbal order of the court, the said sale
was again suspended for some two weeks more, transferring it to the 8th of
July, 1912, at 9 o’clock sharp in the morning.”

It is not here stated that the court allowed the sureties two weeks more of
grace from June 24. Had it done so the sale, occurring as it did on July 8,
occurred one day too soon. But it is distinctly said that the court appointed
July 8 at 9 o’clock in the morning as the date of the sale. There is no question
but that the court could grant an extension of time to the sureties of thirteen
days or any other less period than two full weeks. We are of the opinion that
the court in this last order, as in its first written order of
postponement of the sale, dated May 24, merely fixed the new date of the sale at
a future day, without attempting to compute the time thus allowed to the
sureties; Section 4 of the Code of Civil Procedure is applicable where a given
period of time must be added to a certain date in order to determine the date on
which an act must be performed. But there is no necessity for such computation,
and hence no room for the application of this section, when that date is fixed
by name in the instrument directing the act to be performed. The court in the
case at bar postponed the sale which was to have occurred on June 24. At the
same time it directed that the sale should take place on a
named future date. Section 4, has, therefore, no application to the
present case, and the sale took place at the time designated by the order of the
court.

“Upon a sale of real property, the purchaser shall be substituted to, and
acquire all the right, interest, title, and claim of the judgment debtor
thereto, subject to the right of redemption as hereinafter provided.” (Section
463, Code Civ. Proc.)

In this jurisdiction no confirmation of an ordinary execution sale of a
judgment debtor’s property is required. Title vests in the purchaser when the
sale is made, subject only to the right of redemption allowed under section 464.
Thereafter, if the debtor would secure the return of his property, he must
redeem it.

It is true that if there be some fatal defect in the proceedings the sale may
be set aside. But unless some such defect be alleged and proven, it must stand.
A judgment debtor cannot come into court and request nor can the court order
without some valid reason, that the sale be set aside. In the case at bar, the
court undertook to set the sale aside presumably because the principal had been
arrested by the authorities on July 10, 1912. But his arrest on that date did
not satisfy the conditions of the bond. If we look to the equities of the case,
it will be seen that the court had already dealt
most leniently with the
sureties. Four times the court had postponed the execution sale. Whereas the
bond allowed them thirty days after default to produce their principal, the
sureties in this case were allowed more than four times that period. Clemency to
the sureties must end somewhere if a bail bond is not to lose altogether its
solemnity and become an object of derision. The arrest of the principal two days
subsequent to the sale was no reason for setting the sale aside.

But it is said that the court had control over all of the proceedings in
reference to the confiscation of the bond and the sale of the property, on July
13, when the orders appealed from were entered. The following paragraph in the
order of August 19, denying the fiscal’s motion for a rehearing, is cited in
support of this contention: Painaga “was eventually discovered in Manila and
arrested for another offense. In the meantime the sale of property levied upon
under execution had been made to the Government as a purchaser, and the
suspension of the confiscation of the bond still existed, and the sureties asked
that the sale be set aside as well as the confiscation of the bond.”

When the principal was arrested the property had been sold and the execution
satisfied. Everything had then terminated except the right of the sureties to
redeem the property within one year, if they desired to do so. The court seems
to intimate in the above paragraph that the “suspension of the confiscation of
the bond still existed” at the time the property was sold on July 8. But we find
nothing in the record to support this theory. The order of confiscation was
entered, as we have said, on February 28, after due notice to the sureties, and
the sureties at no time asked that this order or judgment be disturbed. They
only asked from time to time that the sale of the property be postponed, so
there was no order in force on July 8 suspending either the sale or the
enforcement of the judgment of February 28. Under these facts and circumstances,
had the court lost control over its judgment of February 28, when it issued the
orders appealed from on July 13? We think this question must be answered in the
affirmative.

In the case of the United States vs. Bonoan (22 Phil. Rep., 1), it
was held: “Under the provisions of section 76 of General Orders, No. 58, the
following procedure in the forfeiture of bail bonds must be followed: (1) If the
defendant fails or neglects to appear on any occasion when his presence is
required by the court, or fails to surrender himself in execution of the
judgment, an order forfeiting the bond or the deposit must be entered; (2) the
court shall then notify the bondsmen and give them thirty days within which to
present the body of their principal; (3) if the bondsmen do not present the
defendant within the said thirty days and do not satisfactorily explain the
reasons therefor, the court must then render judgment against the bondsmen for
the amount represented in the bond.”

In the case at bar the procedure outlined in the above quotation was not
strictly followed. The court in effect forfeited the bond and rendered judgment
against the sureties at the same time, but this was not done until the lapse of
twenty days after the sureties had been notified to present the body of their
principal. The fact that the order of confiscation and judgment against the
creditors were entered at the same time, and only twenty days after the sureties
had been notified to present the body of their principal, did not deprive the
court of jurisdiction of either the persons or the subject matter of the action.
The sureties, at no time questioned the validity of the judgment or the
procedure adopted. Neither did they note an exception or take any steps looking
toward an appeal. In their motion asking the court to set aside the judgment and
the sale of the property the sureties neither alleged fraud nor any irregularity
or any matter which could /affect the validity of the proceedings. The only
reason they gave was the fact that their principal had been arrested and was
then in confinement serving the sentence, but his arrest did not take place
until after the judgment had been satisfied by the sale of the property.

For the foregoing reasons the orders appealed from are reversed. The
confiscation of the bond and the sale of the property must stand. No costs will
be allowed in this instance.

Arellano, C. J., Carson and Araullo, JJ., concur.

---

MORELAND, J.

I am compelled to dissent in this case.

The reason why I dissent is that the court holds that the issuance of an
execution, and the seizure and sale thereunder of the property of a surety on a
bail bond, are legal and valid acts and the execution a valid process, although
the surety had no trial or hearing, although no notice of any kind or character
was given him, and although no judgment was ever found, dictated or entered
against him or any other person.

The appeal is from an order of the Court of First Instance of Manila setting
aside the forfeiture of a bail bond and the sale of certain property belonging
to the surety under an execution issued upon such forfeiture.

The undertaking which is the subject matter of this proceeding was given by
Evaristo Painaga and Emeterio Suñga in a criminal action to secure the liberty
pending trial of the said Evaristo Painaga, who was charged with a violation of
the Opium Law in the Court of First Instance of the city of Manila.

The accused was found guilty in a judgment of the court filed on the 1st day
of February, 1912. On the 7.th day of the same month the court issued the
following notice to the surety, Emeterio Suñga, which was duly served upon him
on the same day, to wit:

“You are hereby directed to produce the body of Evaristo Painaga at the Court
of First Instance, city of Manila, Part I, on the 8th day of February, 1912, 8
a. m.

“The sureties are hereby notified that if without sufficient cause the
defendant above mentioned neglects to appear before the court on the date and
hour specified above, the bail or bond, as the case may be, will be declared
forfeited.”

On the 28th day of the same month the court issued the following order:

“The above-named defendant having been sentenced, and his sureties having
been notified to produce his body before the court, and having failed to do so
after due notice,

“It is ordered. That the defendant’s bond be forfeited and that
execution issue against the principal and the sureties for the amount
thereof, and that a bench warrant be issued for the arrest of the
defendant”

On the 5th day of March execution was issued against the property of Sunga,
the surety, and. a levy made upon his house and lot, which constituted all of
his possessions. The sale was postponed from time to time until the 8th day of
July, when it took place, the property levied upon being sold to the Insular
Government. Shortly after the sale the fugitive was apprehended and produced in
court, whereupon, upon application, the court discharged the forfeiture and set
aside the sale in the following order, to wit:

“The sureties having prayed that the order confiscating the bond in this case
be vacated and the sale of the property under an execution issued by virtue
thereof be set aside, and it appearing that said sureties have made diligent
efforts to fulfill the conditions of the bond and that the accused has appeared
before the court to fulfill the sentence pro nounced upon him.

“It is hereby ordered that the order confiscating the undertaking given by
the accused and his sureties be and is hereby vacated and set aside, and it is
also ordered that the sheriff vacate and annul the sale of the property of said
sureties upon payment of all the costs of the proceedings.”

Thereupon a motion was made by the prosecuting attorney of the city of Manila
to vacate said order upon the ground that the court had no jurisdiction to make
it. After due hearing the court denied the motion in an opinion, part of which
is as follows:

“In this case the bond was forfeited for failure on the part of the sureties
to produce the defendant in court when called for by the court, and execution
was issued upon the forfeiture against the sureties upon the bond.

“The sureties appeared within a short time after forfeiture and asked for a
suspension of the forfeiture in order to give them an opportunity to
produce the defendant, he having been at liberty under bond after judgment
entered in this court. The suspension was granted pending the effort of
the sureties to obtain the defendant and produce him in court, and sale of
property levied upon under execution was suspended for the same reason.

“The sureties made special endeavor to find the defendant, following him over
the Island of Mindoro and the Batangas Peninsula. In the meantime an alias
warrant for his arrest was issued and was not served because the defendant could
not be found. He was eventually discovered in Manila and arrested for another
offense.

“In the meantime the sale of property levied upon under execution had been
made to the Government as a purchaser, and the suspension of the
confiscation of the bond still existed, and the sureties asked that the
sale be set aside as well as the confiscation of the bond.

“Believing that the sureties had honestly and in good faith attempted to
comply with their obligation to deliver the defendant to the court, an order was
made setting aside the confiscation and the sale made of the property levied
upon under execution to take effect upon the payment by the sureties of all the
costs incurred in relation to the confiscation and sale under
execution.”

This appeal is from the order of denial.

This court has reversed the order of the court below, holding that it had no
jurisdiction to discharge the forfeiture and set aside the sale.

The decision lays down what I regard as the remarkable doctrine to which I
have referred already. May the property of an individual be forcibly seized
under execution and sold, without a trial, without a hearing, without notice,
and without even a judgment against him or any other person? The court
by this decision holds that it may and that a sale under a seizure made under
such circumstances is so jealously guarded by the law that it may not thereafter
be set aside.

It is undisputed in this case that the surety on the bond, which is the
subject matter of this action, was never given a hearing, had no
opportunity to be heard, was not even given notice of a hearing, and
that no judgment has ever been found, declared, or entered against him, or
his principal, or any other person. The surety never dreamed that there was
any proceeding whatever begun or pending against him until the sheriff seized
his property under execution’, and the fact was that there was
none.

As has already been noted, on February 7 the trial court issued a notice to
the surety, hereinabove set forth, which simply advised him that if he did not
produce the body of the convict on or before the 8th day of February, the bond
would be declared forfeited. No notice was given of any intended hearing or
trial or that judgment would be taken against him or execution issued against
his property. On the 28th of February, and without further notice, the court
entered the order of the 28th of February, hereinabove set forth, in which he
declared the bond forfeited and ordered the issuance of an execution against the
surety’s property. The execution was issued, not on a judgment, because there
was none, but simply and solely on the declaration of forfeiture.

Under the law of the Philippine Islands no execution can be lawfully issued
unless there is first a judgment upon which it may be based. There must be found
a specific amount due from one person or entity to another which must be
declared in a judgment. The Code of Civil Procedure provides:

“SEC. 443, When execution may issue.—The party in whose favor
judgment is given, may, at any time within five years after the entry thereof,
have a writ of execution issued for its enforcement, as hereinafter
provided.

“SEC. 444. Issuance, form, and requisites of execution.— The
execution must be issued in the name of the United States of America, Philippine
Islands, sealed with the seal of the court, and subscribed by the judge, or
clerk thereof, and be directed to the governor of the province, or any of his
deputies, and must intelligibly refer to the judgment, stating the
court, and the province where the record of the judgment is, and if it
be for money, the amount thereof, and the amount actually due thereon;
and if made payable in a specified kind of money or currency the execution must
also state the kind of money or currency in which the judgment is
payable, and must direct the governor or his deputy, substantially as
follows:

“1. If the execution be against the property of the judgment debtor,
it must require the governor, or his deputy, to satisfy the judgment with
interest, out of the personal property of such debtor, and if sufficient
personal property cannot be found, then out of his real property; * *
*”

Every section of the Code shows the absolute necessity of a judgment before
an execution can issue. A judgment, of course, presupposes a trial or some kind
of a hearing, with the necessary formalities which accompany it. In the case
before us it is undisputed, indeed appears affirmatively of record, that there
was no judgment whatever rendered against the surety, there having been no trial
or hearing, no pleadings, no issues, no evidence, no findings of fact or
conclusions of law, no declaration of liability, no determination of the amount.
The bond was declared forfeited and execution issued instantly. The word
“execution” is built upon the same root as “execute,” which is transitive. As
used in the law it refers to the judgment upon which it is based and which it is
to “execute.” The execution issued in .this case had no relation to any act of
the court, the surety, or the principal. It was a blue-sky execution. As such it
was absolutely void and could have no force or effect. The sale thereunder was,
in consequence, void. In reality there existed no necessity for setting it
aside. The surety could have replevined the property precisely the same as if it
had been taken by a stranger who seized it without even a pretense of right. The
court acted properly and legally in setting the whole proceeding aside.

It should be noted also that the court below, in its two last orders, states
specifically that the forfeiture was suspended soon after it was declared
and long before the sale; and that the suspension was in full vigor at
the very time the sale took place. If this is so, then there was an
additional ground why the sale should have been set aside; for a sale which
depends for its validity wholly upon a forfeiture can have no abiding virtue if
made while the forfeiture is suspended, especially where, as in this case, it
was vacated and set wholly aside before that suspension ceased.

But the execution and the sale were at least voidable for other reasons.
Under the Philippine Bill no person can be deprived of his property against his
will without due process of law. He is entitled to be notified and to be heard
before his property shall be seized. Here not only did the surety have no
hearing whatever but he received no notice of any intention to hold him
responsible for anything. He not only had no hearing but he was given no
opportunity to be heard. Indeed, instead of being notified to appear and defend
himself, the notice that he received was to an effect altogether different. It
simply informed him that the bond would be forfeited if he did not produce the
convict in court on or before a day named. This was a clear intimation that the
forfeiture of the bond would be the only thing done in case of failure to
produce.

Moreover, section 76 of the Code of Criminal Procedure lays down the
procedure which must be followed when a bond given in a criminal case is
forfeited. It provides:

“If without sufficient cause the defendant neglects to appear for
arraignment, trial, or judgment, or neglects to appear on any other occasion
when his presence may be required in court, or fails to surrender himself in
execution of the judgment, the court must direct the fact of his neglect or
failure to be entered in the record of the cause, and declare the undertaking or
deposit, as the case may be, to be forfeited. But if at any time within thirty
days there after the defendant or his counsel appears and satisfactorily
explains the neglect or failure, the court may direct the forfeiture to be
discharged upon such terms as it may consider just. If the forfeiture is not so
discharged, the promotor fiscal shall at once proceed by
action against the bail upon their undertaking.”

Under this section we notice, in the first place, that nothing can be done
after the declaration of forfeiture until thirty days have elapsed, because,
during that time, the defendant or his counsel may appear and explain the
neglect or failure and the court may direct the forfeiture to be discharged. In
spite of this the trial court declared the forfeiture twenty days after the
failure of the defendant to appear for sentence. In other words, the judgment of
conviction was entered on the 1st day of February, the notice given to produce
the defendant on the 8th day of February, and the forfeiture declared on the
28th of the same month.

In the second place, it should be carefully noted that the section provides
that if the forfeiture is not discharged the prosecuting attorney shall
proceed by action. This means, of course, that the surety must be duly
notified and be given an opportunity to be heard in his own defense. (U. S.
vs. Carmen, 13 Phil. Rep., 455.) This means, equally of course, that
there must be pleadings, issues, that a trial must be had, findings made and
judgment entered. Not one of these requirements was met in this case. The surety
was deprived of his property absolutely without ceremony.

So far as I can discern, the decision of the court gives no consideration to
these fundamental questions. It discusses at length the number of times the sale
was postponed, the law applicable to the counting of the days for which it was
postponed, when the title passes under an execution sale and what is the nature
of that title, whether the court has control over proceedings in cases of
confiscation, and terminates with the suggestion that “the sureties at no time
questioned the validity of the judgment or the procedure adopted.” The
difficulty with this suggestion is that it assumes that a judgment existed,
while the fact is the exact contrary. No judgment was ever dictated by the
court, nor was one ever entered against the surety or anybody else. There was,
therefore, nothing to which the surety could except or which he could move to
vacate or which he could ask to have amended or from which he could appeal.
Moreover, the decision also assumes that there was a procedure adopted. The
exact contrary is true. There was no procedure whatever. The surety was not
proceeded against. There was no proceeding to which he could object unless it
was the bare issuance of the execution; and if there was nothing1 upon which the
execution could be issued, there was no. necessity for an objection to it. One
is not obliged to object to a proceeding which does not exist, or to any part
thereof, if a proceeding which does not exist has parts. The same foundationless
assumption is again made by the court in its expression with respect to the
reasons which the surety gave the trial court in the motion to set aside the
sale.

The court says: “The only reason they gave was the fact that their principal
had been arrested and was then in confinement serving his sentence, but his
arrest did not take place until after the judgment had been satisfied by the
sale of the property.” (Italics mine.)

No judgment was satisfied,
because none existed. The assumption is erroneous. No judgment was dictated or
entered against anybody. The execution was not based on a judgment, but was
issued out of blue sky.

Furthermore, there was no practical reason why the surety should object, as
the court had suspended the confiscation of the bond, had postponed the sale,
and was giving him every opportunity to capture the fugitive. It was but natural
that the surety should prefer to produce the criminal if he could and thus save
himself the expense and trouble of litigation on the bond. All of the acts of
the court were favorable to him from this point of view and he let well enough
alone. He knew that, if he produced the accused in court, that would be the end
of all of his difficulties; whereas, if he had acted as the decision in this
case says he should have acted, he would have been compelled to begin
proceedings to set aside acts of the court which at that very moment were being
suspended in his favor. Even if it be assumed that ordinarily the surety should
have objected to the proceedings, he was fully justified in not doing so under
all the circumstances of this case.

The order appealed from should be affirmed.
Order
reversed.