G.R. No. 1779. April 22, 1904

On the 12th day of January, 1904, an action was commenced in Part
III of the Court of First Instance of the city of Manila, between
Eleanor Erica Strong and Richard P. Strong, as plaintiffs, and the said
Francisco Gutierrez Repide, as defendant. The action was brought for
the purpose of annulling the sale of certain shares of stock. The
complaint in said case alleged that the defendant had fraudulently
secured possession of certain property of the plaintiffs, and requested
that judgment be entered requiring the defendant to return the said
property to the plaintiffs. The complaint contained a prayer asking
that a receiver be appointed to take charge of the said shares of stock
pending the final decision of the cause. At the time the said complaint
was filed the plaintiffs presented a bond with sufficient sureties, in
the sum of $8,000, gold, United States currency, that being the amount
alleged in the complaint to have been paid by the defendant for the
said shares of stock. On the same day the court, after being informed
of the contents of the said complaint, made an order appointing the
sheriff of the city of Manila as receiver to take charge of the said
shares of stock, and directed the defendant forthwith to turn over and
deliver said shares of stock to said receiver.

On the 13th of January, 1904, the court having been informed from
the return of the sheriff that the defendant had not complied with the
said order, and at the request of the attorneys for the plaintiff
issued a further order, requiring the said defendant to appear before
the court at 11 o’clock a. m. of the same day, to show cause why he
should not be punished for contempt for failing to obey said order.

In answer to the order of the court to show cause why he should not
be punished for contempt for a failure to comply with the order of the
court the defendant appeared and requested that the hearing be
postponed until the following morning at 8 o’clock, which request was
granted.

On the 14th of January the defendant again appeared and objected to
being required to answer the said order, upon the ground that no charge
of contempt had been made in writing, as required by section 233 of the
Code of Procedure in Civil Actions. The attorneys for the plaintiffs
then requested permission to file charges in writing, which permission
was granted, and charges in writing were filed.

The court then entered a further order requiring the defendant to
show cause why he should not be punished for contempt of court.

The defendant then announced his readiness to show cause why he
should not be punished for contempt, and the court then and there
proceeded to investigate the charges of contempt under section 235 of
the Code of Civil Procedure, hearing the witnesses presented by the
said parties.

On the 15th day of January, after closing the said investigation the
court made and entered an order in the cause, finding that the
defendant was in contempt of court for failure to obey its order,
directing the defendant to forthwith turn over and deliver said shares
of stock to the said receiver, and directed the sheriff to take charge
of the defendant until he complied with the order. The defendant
thereupon excepted to the judgment of the court and gave notice of
appeal.

The court, after hearing counsel, fixed the bond to be given for the
suspension of the execution of the judgment in contempt at the sum of
$60,000, United States currency. The plaintiff alleged, and the
allegation was not denied, that the property withheld by the defendant
was worth about $150,000, Mexican currency.

On the 4th day of February, 1904, the defendant filed an application
with the clerk of the Supreme Court for the writ of mandamus, in which
he was plaintiff and the Hon. John C. Sweeney, judge of the Court of
First Instance, was the defendant, which application prayed that a writ
of mandamus issue, commanding John C. Sweeney, judge of the Court of
First Instance of the city of Manila, to sign, settle, and allow the
bill of exceptions now in his hands, and of which Exhibit A of that
complaint was a copy, and that in the meantime the said defendant be
restrained and enjoined from committing or permitting the plaintiff to
be committed to Bilibid Prison until said bill of exceptions be settled
and presented to this court, so that the plaintiff may thereupon ask of
this court that
he be admitted to bail, and to give a bail bond in a reasonable sum, in
order to supersede the operation of the said judgment of the said
court, and that the plaintiff have such other remedy as may be proper
and agreeable to the due administration of justice, and that he may
recover his costs herein against the said defendant.

On the same day application for mandamus was presented to Charles A.
Willard, associate justice of the Supreme Court, and after reading the
same, he, as such associate justice, granted that part of the prayer of
the petition which requested that the defendant be restrained and
enjoined from committing or permitting the plaintiff to be committed to
Bilibid Prison, upon condition that the said plaintiff give a bond in
the sum of $500, gold.

On the same day the plaintiff presented a bond in the sum of $500,
currency of the United States, with Eduardo Gutierrez Repide and
Gustave L. Solignac as sureties. Justice Willard approved the said
bond, and the injunction issued.

On the 5th day of February, 1904, under the practice followed in the
Supreme Court in such cases, an order was issued and served upon the
defendant on the same day, requiring him to appear and answer the said
application for mandamus.

On the 8th day of February, 1904, the defendant in the mandamus proceedings filed his answer in the said cause.

On the 30th day of January, 1904, the defendant in the original
cause presented to the judge of the Court of First Instance of the city
of Manila, defendant in this cause, a bill of exceptions covering
errors complained of growing out of the proceedings in contempt.

Subsequently, to wit, on the 4th day of February, 1904, the judge,
defendant herein, refused to sign said bill of exceptions on the ground
that the plaintiff was not entitled to have a bill of exceptions
settled until the rendition of a judgment upon the merits of the action
in the said suit to set aside the alleged fraudulent sale of stock.

The issues presented by the application for mandamus and the answer
of the defendant were argued before this court on the 15th day of
February, 1904. At the time of the argument the plaintiff requested,
among other things, permission to amend the prayer contained in his
original application by substituting the following prayer, which was
granted:

“Petitioner therefore prays that a writ issue directing the
respondent to approve and sign the bill of exceptions now in his hands,
a copy of which is hereunto attached, marked ‘Exhibit A,’ and to let
petitioner to bail in the said contempt proceedings, and to accept from
him a bond, with sureties to the satisfaction of the court, in a sum
not to exceed five thousand dollars, United States currency, and that
in the meantime respondent be restrained and enjoined from committing
the petitioner to Bilibid Prison, or permitting him to be so committed
until further orders from this court, and that petitioner be granted
such other and further relief as may be proper and agreeable to the due
administration of justice, and that he may recover his costs herein
against respondent.”

The pleadings in this case raise two questions for the consideration of this court:

First. Whether the defendant, plaintiff herein, is entitled to have
a bill of exceptions in the contempt proceedings signed by the trial
judge and brought to this court before final judgment is rendered in
the action out of which the contempt proceedings grew.

Second. Whether or not the amount of the bond provided for the
suspension of the execution of a judgment in a contempt proceedings can
be fixed within the discretion of the court issuing the order in
contempt, and incidentally, whether or not the amount of the bond
should be fixed at a sum which would insure the appearance of the
defendant, or whether the amount should be fixed at a sum equal to the
value of the property which the defendant refused to turn over.

Section 240 of the Code-of Procedure in Civil Actions provides that:

“The judgment and orders of a Court of First
Instance, made in cases of contempt, except in cases arising under
section 231, may be reviewed by the Supreme Court; but execution of the
judgment and orders shall not be suspended until there is filed by the
person in contempt, in the court rendering the judgment, or making the
order, an obligation with sureties to the acceptance of the judge, in
an amount to be by him fixed, and conditioned that if judgment be
against him, he will abide and perform the order or judgment. But such
review shall be had only after final judgment in the action in the
Court of First Instance, and when the cause has regularly passed to the
Supreme Court by bill of exceptions, as in this act provided.”

It will be noted that this section provides that all orders of a
Court of First Instance made in cases of contempt, except those arising
under section 231, may be reviewed by the Supreme Court. This language
would indicate that the party punished for contempt might -bring that
cause to the Supreme Court at once for review. But the last sentence of
said section provides that such review shall be had only
after final judgment in the action in the Court of First Instance, and
when the cause has regularly passed to the Supreme Court by bill of
exceptions, as by law provided.

In accordance with the provisions of this section we are of the
opinion that the application for a mandamus to compel the judge to sign
the bill of exceptions in the contempt case before final judgment in
the principal cause must be denied.

It will be noted that section 240 provides for the suspension of the
execution of the judgment in the contempt proceedings by giving a bond.
It further provides that the bond must be presented, with sureties, to
the acceptance of the judge, and that the judge shall fix the amount of
said bond. The said section further provides that the bond shall
proyide that the person in contempt shall abide by and perform the
order or judgment.

Section 238 of the same code provides:

“If the party released on bail fail to appear upon
the day named the court may issue another order of arrest, or may order
the obligation for his appearance to be prosecuted, or both; and, if
the obligation be prosecuted, the measure of damages shall be the
extent of the loss or injury sustained by the aggrieved party by reason
of the misconduct for which the contempt was prosecuted and the costs
of the proceedings, and such recovery shall be for the benefit of the
party injured.”

This section clearly provides for a bond to enforce the attendance
of a person charged with contempt to appear upon a day named. It also
expressly provides that if an action be brought upon the bond “the
measure of damages shall be the extent of the loss or injury sustained
by the aggrieved party by reason of the misconduct for which the
contempt was prosecuted and the costs of the proceeding, and such
recovery shall be for the benefit of the party injured.”

The condition of the bond fixed by section 240 is that “he will
abide and perform the order or judgment.” The order or judgment in the
present cause was that the defendant (in the cause below) turn over to
the plaintiff (in the cause below) certain stock alleged to be worth
$150,000, Mexican currency, more or less. It would appear, then, that
the bond to be accepted in this present cause should be that the
defendant should turn over to the plaintiff the shares of stock in
question, or pay to the plaintiff their value. It is clear, therefore,
that this bond is not required, primarily, for the, appearance of the
defendant.

Section 238 provides for the giving of a bond to enforce the
appearance of the defendant, and yet that section provides that the
measure of damages in an action upon said bond shall be the extent of
the loss or injury sustained by the party by reason of the misconduct
for which the contempt was prosecuted, and the cost of the proceedings.
Then if the statute provides that the damages in an action upon a bond
for appearance simply shall be measured by the loss or injury
sustained, certainly a bond conditioned that if a final judgment, be
rendered against the defendant he will abide and perform the order or
judgment, should be sufficiently large to cover the losses which the
plaintiff would suffer in case he failed to comply with the conditions
of said bond.

We are of the opinion, therefore, and so hold :

First. That the judge below has authority to fix the amount of the bond; and

Second. That the amount of the bond should be sufficient to protect the plaintiff from loss.

In view of the foregoing considerations, we hereby hold that this
court has no jurisdiction to consider the bill of exceptions in the
contempt case here presented until after final judgment in the action
in the court below and until the cause has regularly passed to this
court by a bill of exceptions.

The application for mandamus to compel the defendant herein to sign
the bill of exceptions accompanying the said application is. hereby
denied, and inasmuch as the statute provides that the judge below shall
fix the amount of the bond in such cases we hereby refuse to direct the
court below to accept a bond in an amount not exceeding $5,000 gold.
And it is so ordered.

Arellano, C. J., Torres, Mapa, and McDonough, JJ.,

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We concur in the foregoing decision in so far as it holds as we do
hereby hold “that this court has no jurisdiction to consider the bill
of exceptions in the contempt case here presented until after final
judgment in the action in the court below and until the case has
regularly passed to this court by a bill of exceptions” and that “the
application for a mandamus to compel the defendant herein to sign the
bill of exceptions accompanying the said application should be denied.”

We dissent, however, from that part of the decision wherein it is
declared that the bond to be given by the defendant in the contempt
proceedings should be necessarily in an amount equal to that involved
in the main suit as required by the order of the court below for the
violation of which the plaintiff herein was held to be in contempt,
particularly when, as in the present case, the plaintiff has alleged,
without being, contradicted by the defendant, that plaintiff’s claim
has been sufficiently secured by an attachment and a bond covering the
amount involved. It thus appears that for the purpose of securing a
single claim two different securities have been required, the second
bond being clearly excessive. This, however, may be remedied by a
proper action of this court.

We dissent from that part of the decision refusing to direct the
court below to accept a bond in an amount not to exceed $5,000, gold,
and expressly order the Court of First Instance to accept a.bond in an
amount not to exceed $5,000, gold, and to this effect the necessary
orders shall issue. So ordered.

Petition denied.