DIOSCORO COMENDADOR, PETITIONER, VS. JORGE M. CANABE, RESPONDENT.

Comendador versus Canabe

The Case

This is an administrative case in which Dioscoro Comendador, a plaintiff in a civil suit for malicious prosecution, charged deputy sheriff Jorge M. Canabe with willful and deliberate failure to serve the writ of execution issued in that civil case. The charge was filed with the Office of the Court Administrator, and the case matters because it fixes the standard of conduct demanded of sheriffs as officers of the court: the duty to serve writs promptly, the duty to make a return of service within the period fixed by the Rules, and the duty to secure court approval of estimated expenses before accepting money for the enforcement of process. It is a case about the execution of judgments, which the Court calls the fruit and end of the suit.

Procedural History

The complaint was received by the Office of the Court Administrator in February 1997. The respondent was required to file his Answer, which he received in October 1997, but no answer came. In February 1999 the Court Administrator directed him to submit his Answer within fifteen days, and the Answer was finally received in April 1999. The Court Administrator then submitted findings and a recommendation: that the case be re-docketed as a regular administrative matter, that the respondent be fined one thousand pesos for failure to make a return of the writ, and that he be warned. In February 2000 the Supreme Court resolved to docket the case as a regular administrative proceeding and required the parties to manifest whether they were willing to submit the case for resolution on the pleadings. The complainant manifested that he was willing. The respondent did not comply with the resolution, and in February 2001 he was required to show cause why he should not be disciplinarily dealt with or held in contempt. In August 2001 the Court considered the filing of the manifestation as waived, so the respondent was deemed to have waived his right to present evidence. The case was then resolved by the Supreme Court in its administrative jurisdiction.

Facts

Dioscoro Comendador was one of the plaintiffs in a civil case for malicious prosecution filed in the Municipal Trial Court of Leyte, Leyte, against Atty. Vicente Ramirez and others. The court issued a writ of execution, which the Municipal Trial Court received in September 1995, and a second writ, received in December 1995. Both writs were assigned to deputy sheriff Jorge M. Canabe, who was detailed with a branch of the Regional Trial Court in Carigara, Leyte.

As of February 1997, the Clerk of Court of the Municipal Trial Court certified that the respondent had made no return of either writ. That was more than a year after both writs had been issued and received by him. The complainant then wrote the Office of the Court Administrator, charging willful and deliberate failure to serve the writs.

In his Answer, the respondent claimed that he had served the writ on the principal defendant, that the other defendants were insolvent laborers, that the principal defendant was in Metro Manila at the time of service, and that the complainant had verbally agreed that service would be made upon the defendant's return. He also admitted receiving two hundred pesos from the complainant for transportation to the residence of the principal defendant, about one hundred fifteen kilometers away, and to the town where the other defendants resided. He attached no proofs to his Answer, and he never submitted the returns required by the Rules.

Issues

• Whether or not the respondent is guilty of willful and deliberate failure to serve the writs of execution.
• Whether or not the respondent is administratively liable for failing to make a return of the writs within the period required by the Rules of Court.
• Whether or not the respondent is liable for accepting money for expenses of execution without the written approval of the court and without issuing a receipt.

Applicable Provisions

Section 11, Rule 39 of the Rules of Court, then prevailing, provides:

Section 11. Return of writ of execution. Writ of execution may be made returnable to the clerk or judge of the court issuing it, at any time not less than ten nor more than sixty days after the receipt by the officer who must set forth in writing on its back the whole of his proceedings by virtue thereof, and file it with the clerk or judge to be preserved with the other papers in the case. A certified copy of the record, in the execution book kept by the clerk, of an execution by virtue of which real property has been sold, or of the officer's return thereon, shall be evidence of the contents of the originals whenever they, or any part thereof, have been lost or destroyed.

This is the provision the respondent violated: he filed no return within the period fixed, and the absence of a return gave the complainant the impression that service was being deliberately refused.

Section 9, Rule 141 of the Rules of Court provides:

Section 9. Sheriff, and other persons serving processes. In addition to the fees hereinabove fixed, the party requesting the process of any court, preliminary, incidental or final, shall pay the sheriff's expenses in serving or executing the process, or safeguarding the property levied upon, attached or seized, including kilometrage, for each kilometer of travel, guards' fees, warehousing and similar charges, in an amount estimated by the sheriff, subject to the approval of the court. Upon approval of said estimated expenses, the interested party shall deposit such amount with the clerk of court and ex-oficio sheriff, who shall disburse the same to the deputy sheriff assigned to effect the process, subject to liquidation within the same period for rendering a return on the process. Any unspent amount shall be refunded to the party making the deposit. A full report shall be submitted by the deputy sheriff assigned with his return, and the sheriff's expenses shall be taxed as costs against the judgment debtor.

This governs the respondent's complaint that he was given only two hundred pesos: the sheriff must secure the approval of the issuing court of the estimated expenses, and the money must be deposited with the clerk of court, not accepted in cash by the sheriff.

Ruling

On the first issue, the Court agreed with the Court Administrator that there was no sufficient evidence that the respondent deliberately refused to serve the writs. The charge of willful refusal was not substantiated.

On the second issue, the Court held that the respondent was not free from fault. The perception that he was deliberately refusing to serve the writs emanated from the undisputed fact that he failed to submit his returns within the period required under Section 11, Rule 39. He presented no countervailing evidence and attached no proofs that he tried to serve or enforce the writs. The Clerk of Court certified that as of February 1997 no returns had been submitted, one year and five months after the first writ and one year and two months after the second. The Court held him guilty of gross negligence in the performance of his duties, noting his propensity for ignoring not only the Rules of Court but also the resolutions of the Court duly received by him.

On the third issue, the Court held that the respondent had not shown compliance with Section 9, Rule 141. The sheriff is obliged to secure the approval of the issuing court of the estimated expenses and fees for implementation of the writ. The acceptance of cash for whatever amount and purpose without the written approval of the Presiding Judge and the issuance of the corresponding receipt constitutes gross misconduct.

The Court stressed that sheriffs play an important role in the administration of justice and that, as agents of the law, high standards are expected of them; by the nature of their functions, they must at all times act above suspicion. Execution is the fruit and end of the suit and is the life of the law, and a decision left unexecuted or delayed indefinitely due to the inefficiency, negligence, misconduct or ignorance of the law of sheriffs renders the same inutile. The Court cannot countenance any act or omission which divides or tends to diminish the faith of the people in the judiciary. To stress the gravity of the gross negligence and gross misconduct committed, the Court increased the fine recommended by the Court Administrator from one thousand pesos to ten thousand pesos.

Doctrine

A sheriff must make a return of the writ of execution within the period fixed by Section 11, Rule 39 of the Rules of Court, which is not less than ten nor more than sixty days after receipt of the writ. Failure to do so constitutes gross negligence in the performance of duty, even absent proof of deliberate refusal to serve.

A sheriff may not accept cash for expenses of execution without the written approval of the Presiding Judge and the issuance of a corresponding receipt. Under Section 9, Rule 141, the estimated expenses must be approved by the court and deposited with the clerk of court, subject to liquidation within the same period for rendering a return. Acceptance of cash without such approval and receipt constitutes gross misconduct.

Sheriffs are officers of the court upon whom the execution of a final judgment depends. They must act with dispatch and above suspicion, because execution is the fruit and end of the suit and the life of the law.

Disposition

The Court found Sheriff Jorge M. Canabe guilty of gross negligence and gross misconduct in the performance of his duties and imposed a fine of ten thousand pesos, to be deducted from his retirement benefits.

Remember This

The single line worth memorizing: a sheriff who fails to make a timely return of the writ, or who accepts cash for execution expenses without court approval and a receipt, is guilty of gross negligence and gross misconduct. Examiners use this case in administrative law and legal ethics to test the duties of sheriffs in the execution of judgments and the proper procedure for sheriff's expenses under Rule 141.