CHUA DOC DE, PLAINTIFF AND APPELLANT, VS. ARTADI & COMPANY, DEFENDANT AND APPELLEE.

This is an action to recover damages alleged to have been caused by the
malicious attachment and levy by the defendant upon the goods, wares, and
merchandise of the plaintiff.

The plaintiff alleged “that since 1903 the said plaintiff was a merchant
conducting a general business in the town of Liloan and in other parts of Leyte;
that his business was large and his credit good and extensive; that in February
and April, 1905, and again for a third time in February, 1906, the defendant had
the local sheriff attach the plaintiff’s store and all the stock therein,
although plaintiff was in no way a party to the action.” “All three
attachments were released within from one week to four months after each levy.
The effect of them, however, was to ruin plaintiff’s business and destroy his
credit, for which he asked damages in the sum of P20,000.”

In the brief
it is stated: “This first levy was a preliminary attachment and took place
February 18, 1905/ Appellant on March 22, 1905, in the same case but by virtue
of a writ of execution against Jose Garrido, was levied on again by the same
deputy sheriff, Eustaquio Rafols, Gervacio Mangle, acting president, Carlos D.
Lizardi, of Artadi & Co., and Antonio Eiguran, also of Artadi & Co. This
levy was on the entire store and business of appellant, the same, as a result
thereof, being entirely closed.

“Claim was immediately made to the sheriff in Tacloban by appellant for the
store and goods, and, upon Artadi & Co. refusing to file an indemnity bond,
the attached goods and premises were restored to appellant in the latter part of
March, 1905.

“It should be noted here that this delivery back to appellant was because of
his sworn representations and claim of ownership of the property.

“After the return of his goods and the reopening of his store, appellant
continued his business, when, on the 22d of February, 1906, the store was once
again attached and closed up by virtue of an order of execution in the same case
as before. This levy was made by the same deputy sheriff, the municipal
president of Liloan, and Antonio Eiguran and Carlos de Lizardi, managers of
Artadi & Co. The defendant’s agents took active part in directing the
attachment.

“As a result of this attachment the store remained closed for two months. Ly
Jinco, partner of Chita Doc De, presented his claim to the sheriff for the
attached premises, and Artadi & Co. refusing to file a sheriff’s indemnity
bond, the premises were restored.”

From the documentary evidence in the case it appears that some time in the
latter part of the year 1904 or the early part of 1905 the defendant company
began an action against Jose Garrido and Fernando Garrido for the recovery of
about ?35,000 alleged to be due to the plaintiff from the defendants. In that
action the plaintiff company, in February, 1905, obtained an attachment before
trial upon the property of the defendants, consisting of a stock of goods in a
tienda, or a part thereof, supposedly the property of the defendants,
which is, generally speaking, the subject matter of this action. On the 21st of
March, 1905, another attachment was made in the same action and on the same, or
substantially the same, property.

The defendants Jose Garrido and Fernando Garrido desiring to recover
possession of the property attached, on the 10th of April, 1905, made an
application to the court in which the action was pending and which had issued
the orders of attachment, to have them dissolved and the property returned to
the owners, presenting the proper petition, affidavits, and undertaking to that
end. On the 14th of April, 1905, the court ordered a dissolution of the
attachments and the return of the property to Jose and Fernando Garrido.

On the 27th of May there was issued by the deputy sheriff, who had in his
possession the property attached in February and March, 1905, a paper signed by
himself and by the plaintiff in this action, Chua Doc De, entitled “In the Court
of First Instance of Leyte, Artady and Company versus Jose Garrido and
Fernando Garrido” and denominated “Right of third party to ownership and
possession presented by the Chinaman Chua Ducly, alias Dia.”

This paper reads as follows:

“In the municipality of Liloan, May 27, 1905.

“Mr. Gervasio D. Mangle, the municipal president of this pueblo, acting in
the capacity of sheriff, through deputation, received from Mr. Eustaquio Rafols,
deputy sheriff, an affidavit made by the Chinaman, Chua Pucly, before the clerk
of the Court of First Instance of this province. By means of the said affidavit,
Chua Ducly filed a third party claim to the ownership and possession of various
goods and merchandise that were attached in the name of the defendant, Jose
Garrido, by order of the Court of First Instance of this province and which were
seized on February 18 and March 21 last, by the provincial sheriff in the store
which the third party, Chua Ducly, conducts in the pueblo above mentioned. The
affidavit recited that the said goods and merchandise belonged to the affiant,
Chua Ducly, and that he had been in possession of the same from the time he
opened the said store to the date of the seizure. In support of his claim he
presented the industrial tax receipts issued to him by the provincial treasury
of Leyte on the 16th of March and the 19th of September, 1904, respectively ;
wherefore, in view of the said claim, pursuant to the provisions of section 442
of the Code of Civil Procedure now in force, and, furthermore, since the Court
of First Instance of this province has ordered the dissolution of the attachment
levied on the property of the defendants Jose Garrido and Fernando Garrido, I
have deemed it proper to return and deliver to the third party, the Chinaman
Chua Ducly, alias Dia, under his own responsibility, the merchandise
which was taken from him on the 18th of February and the 21st of March last, as
hereinbefore related.

“In witness whereof this certificate is issued, certified under my signature
and signed by the third party, Chua Ducly.

(Signed) “GERVASIO D. MANGLE,
“Municipal
President.

“CHUA DUCLY.”
(Signed in Chinese characters.)

The cause against the Garridos went to trial and plaintiff company, on the 2d
of November, 1905, obtained a judgment against the defendants for the sum of
P34,736.58. On the 2d of December, 1905, an execution was issued by the court
against the property of the defendants. This is the only execution found in the
record. Under this execution the sheriff on February 24, 1906, levied upon and
seized substantially the same stock of goods and business which had been seized
under the attachments of February and March, 1905.

In April, 1906, one Tim Ymco (alias Yma) presented to the sheriff who made
the levy under the execution of December 2, 1905, issued against Jose Garrido
and Fernando Garrido, a sworn statement alleging that the true and lawful owner
of the property seized under that execution was a partnership composed of
Chinese persons, namely, himself and one Chua Doc De (alias Dia) doing business
under the firm style and name of “Quimzungzing.”

From this statement of the case, as it appears from the documentary evidence
in the record, it is clear that the first two seizures and not the first one
alone were attachments.

That of March 22, 1905, was not a levy “by virtue of a writ of execution” as
stated by the plaintiff, but was an attachment levied in the same action and for
the same purpose as that of February 18 of the same year. No levy could have
been made under an execution at that time because a judgment was not obtained in
the action against Jose Garrido and Fernando Garrido until the 2d of November,
1905, and no execution was issued thereon until December 19 of the same year.
The first levy under an execution was made on the 6th of February, 1906.

It should be noted also that it is very doubtful if the delivery of the
property thus attached to the appellant was “because of his sworn
representations and claim of ownership of the property” as claimed by the
plaintiff. It should be remembered that both attachments were made in the same
action, and upon parts of the same stock of goods and business. According to the
documentary evidence in the case, as we have seen, the defendants in that action
made an application to the court after the second attachment had been made for a
release of the property from said attachments and the return thereof to them,
they alleging that said property belonged to them and was in their possession at
the time of the attachment. They offered a bond for the safe custody of the
property pending the determination of the action. It is to be assumed that the
plaintiff was notified of this application, and it would seem that, if Chua Doc
De and Tim Ymco were the owners of the property, they themselves would have
known of the seizure under the two attachments referred to and would have
appeared in the action for the purpose of obtaining release of the two
attachments upon the ground that the property belonged to them or to the firm of
which they claimed to be partners. No such appearance, however, was made and the
court issued an order dissolving the attachments and ordering the return of the
property to Jose and Fernando Garrido. It should be noted that the order of the
court dissolving the attachments required the giving of two bonds, one
of P35,000 and the other of P17,500. The order is a typewritten order and was
originally drawn so as to require the giving of one bond only and that
for P35,000. After it had been typewritten, however, and at the time of the
granting of the order of the 14th of April, 1905, the court, or someone for it,
interlined with pen and ink just after the words “a bond in the sum of 35,000
pesos,” these words: “and another for the sum of 17,500 pesos.” This would
indicate that the order was drawn after the first attachment and before the
second, and, accordingly, provided for the giving of only one bond and that in
the amount necessary for the dissolution of the first attachment; that, after
the drawing of the order and before it was granted, the other attachment was
made, and the order, when granted, providing for the dissolution of both
attachments, must, as a consequence, provide for the corresponding bond for
each.

The important thing is that the property seized under both attachments was
ordered, after a hearing before the court, delivered back into the possession of
Jose arid Fernando Garrido as their property.

About the time that this was occurring, we find in the record a paper issued
by the deputy sheriff who had made the attachments, setting out, as will be seen
from the contents of the document hereinbefore quoted, that one Chua Ducly had
laid claim to the ownership of the property thus attached and recites that
“since the Court of First Instance of this province has ordered the dissolution
of the attachment levied on the property of the defendants Jose Garrido and
Fernando Garrido, I have deemed it proper to return and deliver to the third
party, the Chinaman Chua Ducly (alias Dia), under his own
responsibility, the merchandise which was taken from him on the 18th of February
and the 21st of March last, as hereinbefore related.”

Why property should be returned by the sheriff to Chua Ducly when the court
had dissolved the two attachments thereon upon the ground that the property
belonged to Jose and Fernando Garrido it is impossible to say, except upon the
theory that Chua Duc was either an agent of the Garridos or was connected with
them in business; and the consent of the Garridos to such delivery can be based
only on some such assumption.

It is, therefore, important to note that the claim on the part of plaintiff
and appellant that the delivery of the property “back to the appellant (Chua Doc
De) was because of his sworn representations and claim of ownership of the
property” is not altogether borne out by the documentary evidence of the case.
The property was delivered as much by reason of the dissolution of the
attachments, and perhaps much more, as by the resolution of the claim of
ownership by Chua Doc De. .In other words, the documentary evidence in the case
seems to show that the property in question belonged to the Garridos rather than
to the plaintiff in this case. This is still more evident when we observe that,
when the levy was made under the execution issued against Jose and Fernando
Garrido by Artadi & Co. and the same property already twice attached was
seized and levied upon, a claim of ownership was put forward not by Chua Doc De
who, it is claimed, had presented a claim of ownership when the property was
attached and who is claiming exclusive ownership in this case, but by a
partnership having the firm style and name of “Quimzungzing.” This claim was put
forward by one Tim Ymco, alleging that he and Chua Doc De were partners in the
firm just mentioned. This levy, it must be remembered, was upon the same
property upon which the attachments had been made previously and it is the
property or substantially the property which was released from the attachments
by order of the court upon the Garridos giving two bonds conditioned that they
would take and safely keep the property delivered to them by virtue thereof, so
that, in the event that Artadi & Co. obtained a judgment against them, it
would then be subject to levy and sale under execution in favor of said
company.

This claim on the part of the partnership mentioned having been made and
Artadi & Co. not having given the bond required by section 451 of the Code
of Civil Procedure, no sale of the property was made under the execution and the
levy appears to have been abandoned. There is nothing in the record that shows
when this occurred. We know that it was made in February, 1906, and that the
claim was presented by the firm of “Quimzungzing” on the 3d of March
following.

While the plaintiff testified that he was the owner of the goods, wares, and
merchandise in question and that no other person had any interest therein, we
have seen that that fact is disputed by the documentary evidence in the case and
so seriously that we are left much in doubt as to the good faith and validity of
plaintiff’s pretensions in. that regard. It is incumbent upon the plaintiff to
prove his ownership, if he recover at all, by a fair preponderance of the
evidence. Whether the evidence of a plaintiff preponderates or not depends not
only upon the testimony itself, but upon the character and credibility of the
witnesses presented to prove it. In this litigation three different persons or
entities have claimed ownership of the property in question: Jose and Fernando
Garrido, Chua Doc De (the plaintiff in this case), and the partnership of
“Quimzungzing.” The Garridos claimed the property and presented two undertakings
conditioned in large amounts for the dissolution of two attachments and the
return of said property to them. In that proceeding the judge found that they
were entitled to possession of the property and, after the undertakings were
filed, ordered it returned to them. About the same time an act of the sheriff,
found in the record in the form of a receiptand delivery, seems to indicate that
the plaintiff in this case had put in a claim as owner of the property attached
and that the sheriff, in delivering the property, delivered it to him. In that
receipt, however, are also mentioned the attachments levied against the Garridos
and their dissolution by the court and the order to return the property attached
to them. Later in the record we found the property being claimed by the firm of
“Quimzungzing,” represented by Tim Ymco, one of the alleged partners thereof, he
asserting that he and the plaintiff in this case constituted the firm. This
latter claim of ownership was admitted by the plaintiff in this case and the
firm appears to have obtained a release of the property in its favor some time
in April or May, 1906.

In this action, however, and as early as June, 1906, when the complaint was
filed, we find the plaintiff claiming to be the sole owner of the property,
without alleging how it ceased to be the property of Jose and Fernando Garrido
or how it ceased to be the property of the firm of “Quimzungzing.”

We are of the opinion that upon the whole case the plaintiff has not
established his ownership of the property in such a manner as to warrant his
recovery in this case. If plaintiff has done anything at all in that regard, it
is to demonstrate that Tim Ymco (alias Yma) has an equal interest with
him in the property. There can be no question that if the plaintiff has
established any ownership of the property outside of the Garridos, it is a joint
ownership between him and his partner. He recognized this clearly toward the
close of the case and asked that the summons and complaint be amended so as to
include Tim Ymco as a party plaintiff in the case. This amendment was opposed by
the defendant upon the ground that it brought a new factor into the case which
had not been there before and would require, in substance, a relitigation of the
whole matter. The court took the matter under advisement, but, so far as the
record shows, never ordered the amendment prayed for. As a necessary result
there exists a defect of party plaintiff which is fatal to Chua Doc De’s
recovery in this action.

We do not think the evidence warrants the conclusion which appellant draws
therefrom, namely, that defendant by its agents, servants, or employees took
sufficient part in the attachments and levy to make the defendant company
responsible either in trespass or for malicious interference with plaintiff’s
property. When a plaintiff places his execution in the hands of an officer for
service, he is presumed to intend that no action shall be taken thereunder not
authorized by the terms of the writ. The sheriff may seize the property of a
stranger or do any other unauthorized act without thereby creating any liability
against the plaintiff, because the plaintiff is not presumed to have directed or
ratified the illegal proceeding. While this presumption may be rebutted and the
injured party may show in such rebuttal that the plaintiff was a cotrespasser
with the officer or that he ratified the trespass and thus make him responsible
for the abuse of the writ, that has not been done in this case by a fair
preponderance of the evidence.

It not having been shown that the defendant company was a cotrespasser with
the officer or that it ratified the acts of the sheriff in making the
attachments and the levy, the charge that it maliciously caused the attachments
and levy to be made upon the property of the plaintiff falls.

The judgment appealed from is affirmed, with costs against the appellant.

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