LOURDES MCCORMACK AND BLAISE MCCORMACK, COMPLAINANTS, VS. HON. JOSE G. MONTEMAYOR, PRESIDING JUDGE, MUNICIPAL TRIAL COURT, BRANCH I, ANGELES CITY, RESPONDENT.

These administrative complaints were filed by Lourdes and Blaise McCormack against the following:  (1) Deputy Sheriff Tomasito
Lising of the Municipal Trial Court, Branch I,
Angeles City for misconduct, gross inefficiency and neglect of duty; and (2)
Municipal Trial Court Judge Jose G. Montemayor, of the
same branch for alleged grave partiality, serious misconduct, grave abuse of
authority and gross ignorance of the law.

Judge Eliodoro B. Guinto
of the Regional Trial Court, Branch 57, Angeles City
was impleaded by the specific allegations in the
complaint and he filed his comment on the administrative complaint as required
by En Banc resolution dated June 22,
1989.

The charges against the respondents arose in connection with a
civil case for ejectment filed on December 2, 1988 against the
complainants by Leonida Usi,
the plaintiff-lessor. 
The judgment in favor of Ms. Usi was affirmed
on appeal to the Regional Trial Court (RTC) Branch 57, Angeles
City, by Judge Eliodoro
B. Guinto on November
28, 1988 with a modification ordering the complainants herein to
pay back rentals.

As ascertained during an investigation of the matters raised in
these cases, there were irregularities committed by the respondents as well as
by RTC Judge Eliodoro B. Guinto
consisting mainly of failure to serve copies of motions, orders and processes
in connection with the ejectment case, despite the
manifestation of a change of address of the complainants in their Answer with
Counterclaim, and disregard of the complainants’ deposit of supersedeas
bond and required monthly rentals.

The report of the Investigator discloses the following facts:

On January 2, 1989,
Ms. Usi filed two (2) motions, the first being the
“Urgent Ex-Parte Motion to Remand the Case to
the Court of Origin” filed with the Regional Trial Court without notice to
complainants.  Judge Guinto
immediately granted this motion and ordered the remand of the case to the
Municipal Trial Court.  Then, Ms. Usi filed with the latter court an “Urgent Ex-­Parte Motion for Immediate Execution”, also without
furnishing a copy to complainants’ counsel.

On January 3, 1989,
Judge Montemayor issued an Order granting the
motion.  On this same date, complainants
filed with the Regional Trial Court their Opposition to Ms. Usi’s
Motion to Remand the case upon learning about the
existence of such motion.  Complainants
also filed a “Petition for Review” with the Court of Appeals on this
date.

On January 4, 1989,
the writ of execution was endorsed to respondent Deputy Sheriff Lising.  The writ
states in its first paragraph that the case was for a “Sum of
Money”.  (Exh. M. p. 30, Rollo)

On January 5, 1989,
Ms. Usi filed an “Urgent Ex­-Parte
Motion to Break Open.” Respondent Judge Montemayor
immediately issued a “Break-Open” order naming the subject:  building to be the “residential
premises” of the complainants instead of the Manhattan Transfer Restaurant
which is actually the subject of the ejectment case.

On January 6, 1989,
without clarifying with the court about which premises to break-open, the
respondent sheriff with the help of others broke open the Manhattan Transfer
Restaurant, hauled away the property of complainants and levied upon the
building to answer for the money judgment directed in the writ of
execution.  He also issued a
“Sheriff’s Notice of Sale”, copies of which were merely posted at the
municipal building and were not served upon complainants’ counsel until
requested by the latter from the court on January 9, 1989, together with copies
of all motions filed and court orders issued after December 28, 1988.

The auction sale was set on January 16, 1989 but was held on January 17, 1989 beyond 5:00 p.m. despite further requests for its postponement
until after the Court of Appeals shall have ruled on the petition for
review.  Ms. Usi
was the sole bidder in the sale and bought the restaurant at a low price of P20,530.50.

After a review of the records, the Court is constrained to hold
RTC Judge Guinto, although he was not nominally impleaded in the caption as one of the respondents, guilty
of partiality in favor of the plaintiff-lessee, Ms. Usi.

Judge Guinto’s decision, dated November
28, 1988, was released late so that it was received by complainants’ counsel
only on December 28, 1988 leaving the latter only one day before the
long year end holidays starting with Rizal Day
(December 30) to New Year’s Day.  On January 2, 1989, the first working day
of the year, Judge Guinto granted the “Urgent
Ex-Parte Motion to Remand the Case to the Court of
Origin” filed on the same date.  The
records of the case were immediately transmitted to and received by the court
of origin in the late afternoon of the same day despite the deposit of supersedeas bond and the monthly rentals and the fact that
the 15-day period to file a petition for review with the Court of Appeals had
not expired.

No urgency can be found from the contents of the motion except
the citation of Section 18 of the Rule on Summary Procedure providing that the
decision of the Regional Trial Court is immediately executory.  The Court rules that this provision does not
apply because the said decision did not actually affirm the trial court’s
decision “in toto” even if it was so stated
because there was a modification.  The
motion’s being “ex-parte” cannot justify
the order granting it in the absence of, and without the slightest knowledge of
the adverse party.  Judge Guinto virtually ignored his judicial discretion to
determine whether a motion may be acted upon ex-parte
or not and left to the movant the determination of
the nature of the motion.

On the basis of the records, the Court finds that the inaction of
Judge Guinto on the complainants’ Opposition to the
Motion to Remand cannot be justified by the loss of jurisdiction caused by his
own orders and the alleged responsibility of complainants to recall the
records.  It was incumbent upon him to
have recalled motu proprio
the records and allowed the filing of the petition for review and to hold the
execution in abeyance.  (Sec. 5 (g), Rule 135 of the Rules of Court).  At any rate, he should not have ordered the
immediate remand of the records.

In Adm. Matter No. MTJ-89-269, the Court
finds Judge Montemayor guilty of gross negligence and
grave partiality in issuing the questioned orders and writ.

He did not provide the complainants with a copy of his order
granting the motion for immediate execution. 
He signed and issued the writ of execution which erroneously states that
the case was for a “Sum of Money” and that the basis of the execution
was the dispositive part of his decision which was,
in fact, modified.  The reliance of the
respondent Judge on his personnel is manifested by the reckless signing of
forms allegedly without ascertaining their correctness.

The “break-open” order issued by the Judge wrongly
designated the premises to be residential. 
It was not supported by a Sheriff’s Return (which was filed about a week
after) but only by a Sheriff’s Affidavit showing that the “premises”
were padlocked and complainants’ address could not be found.  It is doubtful whether the respondent Sheriff
really inspected the “premises” as named in the Order and whether he
actually tried to locate the address.  A
copy of the Order was not served on complainants.

Regarding the charge that the respondent Judge was not in his
office at Branch I, Angeles City
on January 5, 1989, it is a
fact admitted by complainants’ counsel that the respondent Judge is also Acting
Presiding Judge for the Municipal Circuit Trial Court and he was supposed to be
in Mabalacat-Magalang on that date.  The Court sustains the respondent’s objection
to the presentation of evidence on this matter which was not alleged in the
complaint, as well as the objection that the affidavit presented as evidence
was hearsay.  The further charge of
Perjury contained in a supplemental complaint was not brought to the attention
of the Court at the hearing and at the time of submission of the case for
resolution.  Hence, it is deemed waived.

In Adm. Matter No. P-89-292, the Court
finds Deputy Sheriff Lising guilty of grave
misconduct, oppression and partiality in the conduct of the writ of execution
up to the auction sale.  Respondent
Sheriff executed an affidavit on January
4, 1989 stating that at 9:30 a.m.
of that day, he verified the “premises”.  The writ of execution was actually endorsed
to him at 9:45 a.m. of the same
day.  How could he have verified and
ascertained that the building was padlocked and that the defendants’ address
could not be found, even before receiving the writ of execution?  The records show that the affidavit was
prepared by the plaintiff’s counsel. 
While the respondent Sheriff did not clarify with the court the premises
named in the “break open” order, he proceeded to break open the
Manhattan Transfer Restaurant as early as 8:10
a.m. on January 6, 1989
with the help of others and without the knowledge of the complainants
(proprietors thereof).  Moreover, he
issued a Notice of Sheriff’s Sale
on January 6, 1989 without
sending a copy to complainants’ counsel. 
He merely posted copies of the notice in the adjoining offices of the
two branches of the Municipal Trial Court and the Office of the Ex-Officio
Sheriff at Angeles City,
all located on the same floor of the same building.  Respondent Sheriff proceeded with the auction
sale on January 17, 1989
after 5:00 p.m. despite the objection
of complainant’s counsel and sold the Manhattan Transfer Restaurant to
plaintiff, Ms. Usi, at a very low price.  These facts prove his gross violation of
Sections 15 and 20 of Rule 39 of the Rules of Court.

In view of the foregoing,
the Court RESOLVED that:

(1)            The
allegations of the complaint that have inextricably impleaded
JUDGE ELIODORO GUINTO and the evidence gathered during the investigation
establish his having acted with grave partiality.  The Court hereby sentences him to pay a fine
of FIVE THOUSAND PESOS (P5,000.00) as penalty;

(2)            Respondent
Municipal Trial Court JUDGE JOSE G. MONTEMAYOR, Branch I, Angeles
City is
also found guilty of having acted with grave partiality and gross negligence in
the performance of his duties.  The Court
sentences him to pay a fine of EIGHT THOUSAND PESOS (P8,000.00)
as penalty; and

(3)            Respondent
Deputy Sheriff TOMASITO B. LISING is guilty beyond reasonable doubt of the
offense of grave misconduct, oppression and grave partiality.  The Court hereby sentences him to suffer the
penalty of dismissal from service with forfeiture of retirement benefits,
except the value of his accrued leaves and with prejudice to future
reinstatement in the Government service.

SO ORDERED.

Fernan, C.J., Narvasa,
Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento,
Cortes, Griño-Aquino, Medialdea, and Regalado, JJ., concur.