CAPITAL INSURANCE & SURETY CO., INC., PETITIONER, VS. HON. LUIS B. REYES, ET AL., RESPONDENTS

This is an original action for a writ of certiorari, with
preliminary injunction, to annul an order of respondent, Hon. Luis B.
Reyes, as Judge of First Instance of Manila, and restrain the execution
of said order. Upon the filing of the petition and of the requisite
bond, on February 2, 1963, we issued the writ of preliminary injunction
prayed for.

The record shows that on January 5, 4960, respondent
spouses, Pacita Tuason, Principe and Federico Principe, instituted
Civil Case No. 74237 of the Municipal Court of Manila, against Isidro
de Leon, for unlawful detainer. In due course, said court rendered
judgment on April 25, 1962:

“*** ordering
the defendant to vacate the premises described in the complaint; to pay
the plaintiff the rents from September, 1958 to February, 1959, at the
rate of P100.00 a month and from March, 1959 up to the time when the
said defendant shall have actually vacated the premises in question at
the rate of P130.00 a month, plus the sum of P100.00 as and for
attorney’s fees; and the cost of the suit.

“Defendant’s counterclaim is dismissed”.

De Leon appealed to the Court of First Instance of Manila from this
judgment and, to stay its execution, he filed a supersedeas bond,
posted by petitioner herein, Capital Insurance & Surety Co., Inc.,
represented by its agent, Pan American Insurance Agencies, Inc.,
hereinafter referred to as the Surety, reading:

“WHEREAS, in the above-entitled case, pending in this
Court, an appeal has been taken to the Court of First Instance of
Manila and the Court has required the appellant to give bond in the sum
of PESOS FIVE THOUSAND FIVE HUNDRED FORTY ONLY (P5,540.00) Philippine
Currency, as a condition to the stay of execution of the judgment
against ISIDRO DE LEON as appellant and PRINCIPAL, and Che CAPITAL
INSURANCE AND SURETY CO., INC. thru its Gen. Agent, the PAN AMERICAN
INSURANCE AGENCIES, INC., a corporation duly organized and existing
under and by virtue of the laws of the Philippines with principal place
of business at No. 378 Dasmarinas Street, Manila, as SURETY, are held
and firmly bound to said PACITA TUASON-PRINCIPE, et al. in the sum of
PESOS IIVE THOUSAND FIVE HUNDRED FORTY ONLY (P5,540.00) Philippine
Currency, for which payment well and truly to be made, we, the
appel-lant and the SURETY, our heirs and legal representatives, jointly
and severally bind ourselves.

THE CONDITION OF THE FOREGOING BOND IS AS FOLLOWS:

“That the appellant and the SURETY are held and firmly
bound unto the appellee jointly and severally, in the sum of PESOS FIVE
THOUSAND FIVE HUNDRED FORTY ONLY (P5,540.00) Philippine Currency, to
secure the fulfillment and payment of the judgment so appealed,
together with the costs, in case the same should be affirmed, in whole
or in part, or in case the judgment should become effective on account
of the appellant’s having abandoned or withdrawn the appeal, or in case
it should be dismissed or declared to be improperly allowed.”

On July 12, 1962, during the pendency of said appeal, which was
docketed as Civil Case No. 50675 of the Court of First Instance of
Manila, the Principes moved far the execution of the judgment of the
municipal court, upon the ground that De Leon had failed to deposit the
amount corresponding to some monthly rentals that had accrued
meanwhile. This motion was granted and the corresponding writ of
execution issued. Pursuant thereto, the sum of P390.00, deposited by De
Leon, by way of rentals for March, April and May, 1962, was garnished.
Subsequently, or on October 23, 1962, the Principes filed a motion for
a writ of execution against the Surety, on the aforementioned
supersedeas bond. Respondent Judge granted this motion in an order
dated January 7, 1963. A reconsideration of said order having been
denied, the Surety commenced the present action against respondent
Judge, the Sheriff of Manila, and the Principes, upon the ground that,
under the terms and conditions of the above quoted supersedeas bond,
respondent Judge had acted without or in excess of his jurisdiction in
causing a writ of execution to be issued against said petitioner for
the rentals that had accrued prior to the rendition of the decision of
the municipal court.

Upon the other hand, respondents herein maintain, upon the authority of Romero vs. Pecson, 46 Off. Gaz., 4882 and Villaroman vs.
Abaya, G. R. No. L-4833, March 21, 1962, that, under the provisions of
Section 8 of Rule 70 of the Rules of Court, the entire judgment of the
municipal court may be ordered executed upon failure of the defendant
in a forcible entry or unlawful detainer case, who has appealed from an
adverse judgment of said court, to pay the rentals that fall due during
the pendency of the appeal.

Respondents’ theory is correct only insofar as the liability of the defendant in said case, but not as regards the liability of the Surety
under the supersedeas bond therein filed. The obligations of the Surety
thereunder are governed by the terms and conditions of the supersedeas
bond, which, in the case at bar, provides that petitioner shall pay the
amount of the judgment in the municipal court “in case the same shall
have been affirmed in whole or in part, or in case the judgment should become effective on account of appellants’ having abandoned or withdrawn the appeal, or in case it should be dismissed
or declared to be improperly allowed”. In the present case, none of
these conditions has materialized as yet. The unlawful detainer case is
still pending in the Court of First Instance of Manila, In other words,
the decision of the municipal court has not been affirmed in whole or
in part. neither has the appeal therefrom been either abandoned or
withdrawn, or dismissed or declared to be improperly allowed. The cases
invoked by respondents refer to the liability of the defendants
therein. That of the Surety under a supersedeas bond was not involved in said cases, no such bond having been filed therein.
As a consequence, a grave abuse of discretion amounting to excess of
jurisdiction has been committed in issuing the order herein complained
of, and, since an appeal would not afford an adequate relief, the writ
prayed for by petitioner herein should be granted.

WHEREFORE, the aforementioned order of respondent Judge dated
January 7, 1962, as well as the writ of execution issued in compliance
therewith, are hereby annulled and the writ of preliminary injunction
issued by this Court on February 2, 1963, made permanent, with costs
against respondents Mr. & Mrs. Principe. It is so ordered.

Reyes, Barrera, Dizon, Regala, Makalintal Bengzon, Zaldivar and Sanchez, JJ., concur.

DIZON, J., concurring:

I concur with the majority opinion in view of the terms and
conditions contained in the supersedeas bond filed in the present
case-which alone determine the liability of the surety. The reason for
this separate opinion is my belief that said terms and conditions are
not in accordance with the provisions of Section 8, Rule 70 of the
Rules of Court to the effect that the supersedeas bond therein provided
for is conditioned upon appellant’s obligation “(a) to enter the action
in the Court of First Instance and (b) to pay the rents, damages, and
costs accruing down to the time of the judgment appealed from”.

It is, of course, settled, that the supersede as bond answers only
for the rents or damages awarded by the municipal court of origin, the
rents accruing after the rendition of its judgment being secured by
periodical deposits or payments to be made by the defendant-appellant
(Aylon vs. Jugo, et al., 78 Phil. 816; Sison vs. Bayona 109 Phil. 557,)
during the pendency of the surety-as intended by law-necessary arises
upon the issuance of the corresponding writ of execution either of the
judgment appealed from or of the one rendered by the appellate court.
The purpose of the rule requiring the filing of a supersede as bond is
obviously to give the landlord (appellee) in ejectment cases such
security as would assure him the collection of the damages awarded by the court of origin in case of execution of its judgment and
not only when said judgment shall have been affirmed in whole or in
part or it had become effective on account of appellants abandonment or
withdrawal of his appeal, or said appeal is dismissed or declared to
have been improperly allowed. My view, therefore, is that the
supersedeas bond under consideration abridges the right of the landlord
(appellee) without authority of law; but as the surety may not be held
liable except upon the terms and conditions he had accepted, it follows
that in this particular case the writ prayed for is in order