ANTONIO NARVAEZ, PETITIONER, VS. DIONISIO DE LEON, JUDGE OF FIRST INSTANCE OF MANILA, LADISLAO PASICOLAN, SHERIFF OF MANILA, AND CENTRAL SURETY INSURANCE COMPANY, AS PLAINTIFF I…

Ramon P. Bernal was indebted to the Central Surety Co. in the
sum of P3,000 and together with the petitioner Antonio Narvaez signed, as
co-makers, a promissory note for said amount in favor of the creditor. Besides,
the debtor Bernal executed a chattel mortgage on pertain personal properties
belonging to him that had an inventory value of about P7,000 to secure the
payment of his said debt. On April 8, 1947, the respondent Central Surety
Insurance Co. instituted an action against R. Bernal and the petitioner for the
recovery of the aforementioned sum of P3,000, and obtained a writ of attachment
on the same properties mortgaged to the plaintiff to secure the payment of said
amount, according to the verified allegation in the petition filed in the
present case and not denied under oath by the respondents.

Sometime before the rendition of the judgment, the plaintiff
and the defendant Bernal, without the knowledge of the petitioner Narvaez,
entered into an extrajudicial agreement whereby Bernal assigned and transferred
to the plaintiff Central Surety and Insurance Co. the same personal properties
that were mortgaged to the plaintiff and subsequently attached upon the latter’s
petition to secure the payment of the debt, authorizing the plaintiff “to keep
and preserve it or sell it with my consent, the proceeds of which shall be
applied to whatever judgment may be rendered against me in the civil case of
which I am the defendant” (Annex A, respondent’s answer.)

After the rendition of the judgment in favor of the plaintiff
and against the defendants had become final and before any action had been taken
by the plaintiff on the personal properties of Bernal that were first attached
and afterwards delivered to the plaintiff for the purpose above mentioned, a
writ of execution was, upon plaintiff’s motion, issued against the properties of
petitioner Narvaez. The petitioner filed a motion to set it aside on the ground
that, by the plaintiff’s acceptance of Bernal’s chattels or personal properties,
delivered by the latter to the plaintiff to be sold and the proceeds of the sale
applied to the payment of the judgment, the petitioner was only liable for the
balance of the judgment that would remain unsatisfied. The petitioner’s motion
was denied, and hence this petition for certiorari.

Petitioner’s contention in the present case is that the
judgment creditor having already secured possession of the property of the other
solidary debtor Bernal by attachment and voluntary surrender, to be kept and
sold by the said judgment creditor to satisfy the judgment, the respondent judge
abused his discretion in ordering the execution of the petitioner’s property,
citing article 1148 of the Civil Code in support of his contention. And the
respondents, on the other hand, maintain that they have the right to proceed
against the petitioner without previously disposing of the properties of Ramon
P. Bernal, because the petitioner is a joint and solidary debtor according to
the final decision of the respondent judge, in accordance with article 1144 of
the Civil Code, which provides that the creditor may proceed against any of the
solidary debtor or against all of them simultaneously.

It is true that said article 1144 provides that the creditor
may sue either any of the solidary debtors or all of them simultaneously, but
whether only one or all of the solidary debtors are sued jointly “any solidary
debtor may interpose against the claim of the creditor all defenses arising from
the nature of the obligation,” as well as those “personal to the other solidary
debtors * * * with respect to the share of the debt for which the former may be
liable.” As the surrender of the personal properties of the defendant Bernal to
the plaintiff in order that the latter may preserve and sell them and apply the
proceeds thereof to the satisfaction of the judgment, was made after trial and a
short time before the rendition of the judgment, the petitioner could not have
set it up as a defense in his pleading or before the trial of the case, but he
may plead it against the execution of the whole judgment against him. Because,
although a solidary debtor is bound to perform not only his share in the
solidary obligation but also that of his solidary co-debtor since a solidary is
also a joint obligation, if any one of the other solidary debtors ha d already
paid or transferred his property to the creditor to secure the payment of his
share, the defendant solidary debtor has the right to have that payment or the
property given as security by the other debtors sold and the proceed applied to
the satisfaction of the latter’s shares in the obligation for which the
defendant may be liable, pursuant to the above quoted article 1148 of the Civil
Code.

In the present case, before the levy of the execution on the
petitioner’s property, the petitioner can not tell whether or not he is to be
made to pay the whole amount of the judgment, without previously selling the
property of the defendant Bernal in the hands of the plaintiff and applying the
proceeds thereof to the papient of Bernal’s share (one-half) in the solidary
obligation, or only petitioner’s share plus Bernal’s unsatisfied share.
Therefore, it is premature to contend that the court has acted contrary to the
provision of article 1144 of the Civil Code in ordering merely the execution of
the judgment on the petitioner’s property, since the latter, as solidary
co-debtor, is liable to pay at least his own share in the solidary obligation,
as well as that of his co-debtor’s Bernal which would remain unpaid.

If the respondent judge or court would not allow the petitioner
to set up in due time such defense he shall commit an error but not exceed the
court’s jurisdiction and much less abuse a discretion whiCh the court does not
have, in view of the express provision of the law on the matter, and therefore
certiorari would not lie.

Should the court insist, after the execution of the
petitioner’s property, on applying the proceeds of the sale thereof to the
payment of the whole judgment without ordering the sale and applying the
proceeds of the sale of Bernal’s property in the hands of the judgment creditor
to the satisfaction of the letter’s share, the petitioner may appeal from the
court’s order denying his petition to that effect, because it would be a final
order that affects a substantial right of the petitioner rendered after the
judgment has become final. In the same way as appeal is allowed from an order
allowing or disallowing costs, affirming or disapproving a sale inaforeclosure
proceeding, or an order of the court on a report submitted by a commissioner
appointed to determine a question of fact in order to carry a judgment or order
into effect.

“In many States the statutes allow an appeal for a final order,
or from an order or final order affecting a substantial right made after
judgment, order or decree, or made on a summary application in an action after
judgment” (3 C. J., sec. 269). “Under express staturory provisions in many
jurisdiction, varying somewhat in language, an appeal will lie from an special
‘any special order made after final judgment,’ or from ‘an order’ or a ‘final
order’, or an order or final order ‘affecting a substantial right’, ‘in an
action after judgment’ etc.” (3 C. J., sec. 352). And section 2, Rule 4 of Rules
of Court provides that appeal lies against a final judgment or
order.

In view of all the foregoing, the petition for certiorari is
denied with costs against the petitioner. So ordered.

Moran, C.J., Bengzon, Tuason, Montemayor, and Reyes,
JJ., concur.

---

CONCURRING

PARAS, J.:

The petitioner, Antonio Narvaez, and Ramon P. Bernal were
solidary co-makers of a note for P3,000 in favor of the respondent Central
Surety Insurance Company. As a security for said note, Ramon P. Bernal executed
a chattel mortgage in favor of the company on certain personal properties
belonging to Ramon P. Bernal, valued, according to the inventory attached to the
mortgage, at about P7,000. For failure to pay the obligation on time, the
company instituted on April 8, 1947, a personal action in the Court of First
Instance of Manila (Civil Case No. 2255) against Ramon P. Bernal and the
petitioner, Antonio Narvaez, for the recovery of the sum of P3,000. Upon the
commencement of said action, the company obtained from the court a writ of
attachment against Ramon P. Bernal with a view to devying upon the Same personal
properties already covered by the chattel mortgage. From the pleadings it does
not definitely appear that said properties were actually levied upon in
pursuance of said attachment. Indeed, on May 6, 1947, Ramon P. Bernal assigned
to the company the properties, for the company “to keep, and preserve it or sell
it with my consent, the proceeds of which shall be applied to whatever judgment
may be rendered against me in the civil case of which I am the defendant, and
the Central Surety & Insurance Company is the plaintiff.” (Annex A of
answer.) Judgment in civil case No. 2255 in favor of the company was rendered by
the Court of First Instance of Manila on May 31, 1947. After this judgment had
become final and executory, the company obtained a writ of execution, directed
against the petitioner Antonio Narvaez. Efforts to quash this writ of execution
against the petitioner having failed, the latter has come to this Court for the
purpose of preventing its inforcement against the petitioner.

It is contended for the petitioner that the lifting of the
attachment abtained by the company against the properties of Ramon P. Bernal,
without notice to the Court of First Instance of Manila, was illegal, and that
before the petitioner could be bound to pay anything to the company, there must
be a showing that the company has sold the properties mortgaged by Bernal and
later sought to be attached by the company, and that the proceeds of the sale
were not sufficient to pay off the obligation of P3,000.

There is no merit in the contention. It is true that the
properties in question were covered by a mortgage in favor of the company, and
that the latter really intended to attach the same upon the commencement of
civil case No. 2255. But there is no indication in the record that the company
ever proceeded to foreclose the chattel mortgage or that actual levy was made on
said properties. On the contrary, it appears that the properties were turned
over by Ramon P. Bernal to the company for the latter to preserve it or sell it
with the consent of Bernal. Under these conditions, the company was not bound to
sell said properties; as a matter of fact, it is not pretended that they were
sold by the company. The latter has every right to waive any advantage accruing
under the mortgage, the attachment, and the voluntary surrender of said
properties by Ramon P. Bernal. It appearing that the petitioner is a solidary
debtor, it is elementary that the company may proceed against him independently
of his co-maker Ramon P. Bernal. As long as the solidary obligation, now the
subject matter of a final and executory judgment, is not paid, the company may
go against the petitioner alone. The latter of course has his legal remedies
against the co-maker Ramon P. Bernal.

The petitioner has called attention to a letter of Bernal dated
August 5, 1947, informing the petitioner that the company had taken all the
personal chattels valued at more than P7,000 which Bernal considered the loan of
P3,000 fully settled. If there was such a letter, the same cannot overcome the
force and effect of Annex A of the answer of respondent company, which
specifically authorized the company merely to keep and preserve said properties
or sell them with the consent of Ramon P. Bernal.

Wherefore, I vote for the dismissal of this petition for
certiorari, with costs against the petitioner.

PERFECTO, J.:

We concur in the above concurring opinion.