LUCIA JAVIER, PETITIONER, VS. J. ANTONIO ARANETA, IN HIS CAPACITY AS EXECUTOR OF THE ESTATE OF ANGELA S. TUASON AND FIDEL IBAÑEZ, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA,…

On October 30, 1951, this Court dismissed the petition for
certiorari interposed by Lucia Javier and dissolved the preliminary
injunction issued as prayed for in said petition. Before this decision
has become final, a petition was filed in this Court praying that the
damages suffered by respondent resulting from the issuance of the writ
be assessed either by the Supreme Court or by the court of origin. On
November 21, 1951, acting favorably on said petition, this Court
directed the trial court to make a finding of the damages allegedly
suffered by respondent, and on August 13, 1953, this Court was furnished
with a copy of the order entered by the trial court on August 12, 1953,
wherein it denied the motion of respondent to assess the damages as
directed by this Court and ordered that the record be forwarded to the
latter Court for whatever action it may deem proper to take in the
premises.

It appears that while the trial court was in the process or
receiving evidence on the damages incident to the issuance of the writ
of preliminary injunction, Lucia Javier, the defendant, died and because
of this supervening event, the trial court entertained the view that
the claim for damages should be denied because that claim should be
filed against the estate of the deceased. It also appears that, when
respondent pressed for action on his motion for assessment of damages,
counsel for the bonding party, Alto Surety Company, opposed said move on
the ground that the action contemplated is too late because the order
of the trial court denying respondent’s motion for reconsideration and
cancelling the bond filed by the surety has already become final and
unappealable; and considering that a petition for damages holding the
surety liable should be filed before the judgment becomes final, the
court sustained the opposition and denied the motion to assess damages.
The incident is now before this Court for the corresponding appropriate
action.

The finding of the trial court that the claim for damages of
respondent should be denied because of the death of the debtor, Lucia
Javier, and the claim should be filed against the estate of the latter,
is not well taken. This result only obtains if the claim is for
recovery of money, debt or interest thereon, and the defendant dies
before final judgment in the Court of First Instance, (Rule 3, Section
21, Rules of Court), but not when the claim is for damages for an injury
to person or property, (Rule 88, Section 1, Idem). In the present
proceeding, the claim for damages had arisen, not while the action was
pending in the Court of First Instance, but after the case had been
decided by the Supreme Court. Moreover, the claim of respondent is not
merely for money or debt but for damages to said respondent. Thus,
Chief Justice Moran, commenting on Section 1, Rule 3, says: “The above
section has now removed all doubts by expressly providing that the
action should be discontinued upon defendant’s death if it is for the
recovery of money, debt, or interest thereon, while, on the other hand,
in Rule 88, Section 1, it is provided that actions to recover damages
for injury to person or property, real or personal, may be
maintained against the executor or administrator of the deceased.”
(Moran, Comments on the Rules of Court, Vol. 1, 1952 ed., p. 109.)

On the other hand, under Rule 3, Section 17, Rules of Court, when a
party dies and the claim is not thereby extinguished, the court shall
order the legal representative of the deceased, or the heirs, to be
substituted for him within a period of 30 days, or within such time as
may be granted. Here, it appears that no step has so far been taken
relative to the settlement of the estate, nor an executor or
administrator of the estate has been appointed. This deficiency may be
obviated by making the heirs take the place of the deceased.

The claim that the move of respondent to have the damages
assessed against Lucia Javier has come late because the order of the
court denying the motion for reconsideration of respondent and
cancelling the bond filed by the surety has already become final and
unappealable, is not also well taken, it appearing that the motion of
respondent pressing for action on the motion to assess damages was filed
only five days after said order has been entered. It should be noted
that the original order entered by the court on April 7, 1953, was not a
denial of the claim but merely a statement of its view that no action
thereon can be taken in view of the death of Lucia Javier because in its
opinion the claim should be filed against her estate, and the order
which ordered the cancellation of the bond was entered only on May 27,
1953.

It appearing that the trial court has refrained from assessing
the damages which it was directed to assess in the resolution of this
Court issued on November 21, 1951, for reasons which, in the opinion of
the court, are not well founded, it is the sense of this Court that the
record should be remanded to the trial court for it to act as directed
in said resolution.

Paras, C.J., Bengzon, Padilla, Tuason, Montemayor, Reyes,
Jugo and Labrador, JJ., concur.
Pablo, J., took no part.