CALIXTO YAP ALIAS YAP SOUY HUAT, COMPLAINANT, VS. BENJAMIN S. SOMERA, RESPONDENT.

In a verified complaint, CALIXTO YAP alias Yap Souy Huat accused
BENJAMIN S. SOMERA, a member of the Philippine Bar, of “irregular
practice of his profession” in connection with the latter’s intervention
in Civil Case No. Q-5850 of the Court of First Instance of Quezon City
entitled, “Yap Souy Huat vs. Amado R. Santos.”

The complaint states that the suit was decided in favor of the plaintiff
and as a result thereof he obtained an alias writ of execution; that a
piece of land belonging to the defendant was levied and sold to the
plaintiff; that after the expiration of the period of redemption a final
deed of sale was executed in favor of the plaintiff and a transfer
certificate of title was issued to him; and that long after the case had
been closed the defendant aided by Atty. Benjamin S. Somera filed “a
petition with the court trying to re-open the case on the basis of some
misleading or erroneous informations or allegations, which the court
entertained.”

After the respondent had filed his answer to the complaint, the case was
referred to the Solicitor General for investigation, report and
recommendation. Before Us is the REPORT AND RECOMMENDATION.

The Solicitor General states that the case has become moot and academic
because of the death of the respondent. The record shows that Atty.
Benjamin S. Somera died on November 24, 1981, as a result of myocardial
infarction. Nonetheless, the Solicitor General recommends that the
complaint against Atty. Somera be dismissed for lack of merit and this
We do by this resolution in order to clear publicly the name of a lawyer
although he has crossed the bar.

It appears that the petition which is the object of the complaint was
intended to annul the sale of the land to the plaintiff and the issue is
whether or not the respondent acted in good faith in filing the
petition. The Solicitor General states, and We agree, that there was
good faith for the following reasons:

“The sale of the land covered by TCT No. 32932-Rizal on May 15,
1975 was made on the authority of the alias writ of execution issued on
November 9, 1966, or almost nine (9) long years before the sale. There
is basis then for saying that the writ had already become inefficacious,
for under Section 6, Rule 39 of the Rules of Court, a judgment may no
longer be enforced after five years from its finality except by action.
Also, the sale was allegedly made without the notice by publication
required by Section 18, Rule 39 of the Rules of Court, If this is true
and there is no showing that it is not, then the sale was vulnerable for
this reason. Thus, in filing the motion to annul the sale of the land
covered by TCT No. 32932-Rizal on May 15, 1975, respondent did not act
without at least prima facie legal basis.” (Report, p. 24.)

WHEREFORE, the instant complaint against Atty. Benjamin S. Somera is hereby dismissed for lack of merit.

SO ORDERED.

Makasiar, (Chairman), Aquino, Concepcion, Jr., Guerrero, and Escolin, JJ., concur.