JUAN L. ORBETA, PETITIONER, VS. FILEMON SOTTO ET AL., RESPONDENTS.

Original petition for certiorari. The petitioner has been convicted in
the Court of First Instance of Cebu of the crime of arson and in
addition to a sentence for the crime has been held to indemnify
respondent Sotto in the sum of P40,000. From this sentence, Orbeta has
appealed to this court.

After appeal, Sotto brought a civil
action in the Court of First Instance of Cebu for the sum of P40,000
based on the same acts for the value of the identical property, that
forms the basis of the criminal prosecution. At the time of bringing
the civil action a writ of attachment was granted, and the motion to
discharge attachment has been denied. In this proceeding, we are asked
to pass upon the validity of the attachment, and if it is found to be
improperly or irregularly issued, to discharge the attachment.

Articles
112 and 114 of the Spanish Law of Criminal Procedure are applicable to
this case. (Secs. 1 and 107, General Orders, No. 58; Almeida Chantangco
and Lete vs. Abaroa, 218 U. S., 476; 40 Phil., 1056; Alba vs. Acuña and Frial, 53 Phil., 380.) They read as follows:

“Art.
112. When the criminal action is instituted, the civil action shall be
deemed included therein, unless the party injured or prejudiced waives
it, or expressly reserves it to be brought after the criminal action
has been decided, should it lie.

“If only the civil action
arising from one of those crimes which cannot be prosecuted save upon
private complaint is instituted, the criminal action shall forthwith be
extinguished.”

“Art. 114. Upon the institution of criminal
proceedings for a felony or misdemeanor, no civil suit on the same act
shall be prosecuted; and should it have been instituted, it shall be
suspended, pending final judgment in the criminal case.

“It
shall not be necessary for the prosecution of the criminal action that
the civil suit arising from the same felony or misdemeanor should have
been previously instituted.”

The civil
responsibility of Orbeta to Sotto will be decided in the criminal
proceedings. If the conviction is upheld, an indemnity will be awarded.
If Orbeta is finally acquitted, no civil responsibility for his alleged
crime exists. The Almeida case aforecited, like this, grew out of a
case of arson and holds that the civil liabilities of the accused were
settled by the criminal prosecution.

Therefore civil
proceedings instituted contrary to the provisions of the Spanish Law of
Criminal Procedure above quoted, are without force and effect. An
attachment issued in the course of such an improper proceeding must be
vacated, as one of the requirements before an order of attachment can
issue under section 426 of the Code of Civil Procedure is “that a
sufficient cause of action exists”.

Writ granted. Costs against respondent Sotto. So ordered.

Malcolm, Villa-Real, Abad Santos, and Imperial, JJ., concur.