CONSOLACION INSURANCE AND SURETY COMPANY, INC., PETITIONER, VS. HON. ANGEL H. MOJICA, PRESIDING JUDGE OF THE COURT OF FIRST INSTANCE OF RIZAL (PASAY CITY BRANCH), MACARIO M. OFI…

Petition (amended) for certiorari, with a prayer for the issuance of
a writ of preliminary injunction, filed by the Consolacion Insurance
and Surety Company, Inc. to set aside the writ of execution issued
against its bond filed in Civil Case No. 389-R of the Court of First
Instance of Rizal (Pasay City Branch) for the dissolution of the writ
of preliminary attachment issued therein.

Respondent Claro Cortes, doing business under the name and style of
Cortes & Sons, commenced Civil Case No. 389-R in the Court of First
Instance of Rizal against Natalia L. Sison and Sergio Mendoza, doing
business under the name and style of Kapit Bahay Restaurant, etc., to
recover the sum of P7,858.62, alleged purchase price of construction
materials supplied by him to the latter, with a prayer for the issuance
of a writ of preliminary attachment on defendants’ properties. The writ
prayed for was issued by the court, but it was later dissolved upon
defendants’ filing a counter bond, with petitioner herein as surety in
the sum of P8,000.00 “to answer for any judgment that may be awarded to
the plaintiff”.

On October 3, 1962, the respondent judge rendered judgment based
upon a compromise agreement entered into between the parties, reading
as follows:

“1. That it is agreed upon by the parties in this
case that as of today, August 2, 1962, the balance remaining and
outstanding accounts the defendants due the plaintiff is P5,949.15;

2.
That it has been agreed upon between the parties that defendants
confess judgment to the amount above-stated provided that no execution
will issue within four (4) months from today, August 2, 1962;

3.
That it has been agreed upon by the parties that the plaintiff waives
the 25% liquidated damages and attorney’s fees on the amount and
interests due the P5,949.15 within the period of four (4) months.”

On December 21, 1962, respondent Cortes filed a motion for execution
against defendants and herein petitioner on its bond for the sum of
P4,226.25, which was still owing under the judgment abovementioned.
Petitioner objected to the motion alleging that it was not bound by the
compromise agreement entered into by the parties without its consent
and had, therefore, been released from any liability under its bond;
that, at any rate, it had the right of exhaustion under Section 17,
Rule 59 of the Rules of Court.

On January 21, 1963, the respondent judge issued the appealed order.
Petitioner’s motion for a reconsideration thereof having been denied,
the present action was commenced.

No answer to the amended petition appears to have been filed by
respondent Cortes; to the contrary, in his “Second Motion for Extension
of Time to File Answer”, filed on July 12, 1963, he states the
following:

“2. That the Kapit Bahay
Inc. etc. had almost paid respondent Claro Cortes etc. the amount
stated in the judgment alleged in par. 7 of the petition and in the
writ of execution Annex B, for as of this moment, the outstanding
indebtedness of the former to the latter is just a little over
P1,000.00.

3. That the respondent Claro Cortes is not
interested in proceeding against the petitioner for its liability under
the bond posted by the said petitioner which is in issue in this
proceedings.

4. That the issue in this case had become moot
and academic, and it would serve respondent Claro Cortes no practical
purpose for the Kapit Bahay Incorporated, etc. had made arrangement for
the payment of the balance of its indebtedness to Claro Cortes.”

WHEREFORE, the present case is hereby dismissed, without costs.

IT IS SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Barrera, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, and Ruiz Castro, JJ., concur.