. July 26, 1932
DOMINGO AYA, COMPLAINANT, VS. JUAN BIGORNIA, RESPONDENT.
BUTTE, J.:
non-professional conduct.
Under date of September 12, 1929, Domingo Aya addressed to the
Attorney-General, a complaint against Attorney Juan Bigornia of Naguilian,
Isabela, charging that said Bigornia, while his attorney, misappropriated funds
belonging to Aya.
Under date of September 16, 1929, the Attorney-General, without comment,
forwarded this complaint to this court. On September 20, 1929, this court
referred the complaint
to the Attorney-General for investigation, report and
recommendation.
Under date of October 11, 1929, the respondent Bigornia filed his answer with
the Attorney-General. On November 13, 1929, the Attorney-General detailed the
provincial fiscal of Nueva Vizcaya to conduct hearings and make recommendations.
The provincial fiscal conducted hearings, the respondent appearing in his own
behalf.
Under date of March 8, 1930, the provincial fiscal submitted his report to
the Attorney-General, in which he finds the respondent guilty of
misappropriation of funds and of misconduct, grave enough to justify disbarment.
However, he recommended a suspension of his license to practice for a period of
six months.
Under date of April 9, 1932, the Attorney-General submitted his report. He
does not agree that the facts, as he sees them, fully warrant infliction of
disbarment or suspension. He states:
“Nowhere in the record does it appear that, through false pretenses,
respondent converted to his own use the money in question, nor is there any
showing that in the transaction he otherwise acted in bad faith or with
fraudulent purpose.“It is true that respondent has not as yet turned over to complainant all the
money due the latter, but mere non-payment of money by an attorney is
insufficient ground for disbarment, in tlxe absence of fraud or dishonesty in
the retention of the money.”
He also finds:
“It is, however, clear that there was unreasonable delay on the part of the
respondent in accounting funds collected by him for his former client, the
complainant herein, for which irregularity the respondent herein should be
disciplined.”
His recommendation is that the respondent Juan Bigornia should be
reprimanded.
The following facts are undisputed:
The relation of attorney and client existed between Aya and Bigornia at the
time the transactions in question took place. On March 30, 1925, Bigornia, as
Aya’s attorney, obtained judgment in Aya’s favor against Dionisio Cuntapay, for
the sum of P1,000 plus interest and costs. This judgment was affirmed by the
Supreme Court on March 81, 1926.[1]
Bigornia caused an execution to be issued on the judgment on May 11, 192$,
and on or about June 24, 1926, he collected and gave the sheriff a receipt for
P450. On April 12, 1927, he caused another execution to be issued on the
judgment and the sheriff’s return states: “That Cuntapay paid the amount of the
judgment in full.”
Bigornia admits receiving all of the money collected on this judgment. In his
answer to the Attorney-General’s report, which was filed May 6, 1932, he admits
that there was unreasonable delay on his part in accounting for the funds
collected by him for his former client.
On May 4, 1929, Aya signed a typewritten receipt for the sum of P50 which,
together with P391 previously received, made a total of P441. This receipt
contains the following language:
“El Sr. Bigornia pagara este resto de su deuda hasta el dia 31 del presente
mes * * * El saldo que todavia queda y debe pagar, puede considerar como deuda
suya, como asi lo considero yo. Y para que conste, firmo el presente recibo para
resguardo del Sr. Bigornia, hoy a 4 de mayo de 1929, en Cauayan,
Isabela.”
The essence of the respondent’s defense is that Aya agreed that Bigornia
might collect and use the money in the nature of a loan from Aya. Until Aya
signed the statement above quoted on the 4th of May, 1929, no evidence in this
record, in our judgment, sustains the respondent’s defense. On the contrary, the
complainant was constantly demanding payment of the money Bigornia had collected
and, doubtless, Aya signed that statement of May 4, 1929 “para resguardo del Sr.
Bigornia * * *,” relying on Bigornia’s promise that the balance of the debt
would be paid before the 31st of May, 1929. So far as this record shows, the
balance due has not been paid to this date. During the hearing of the charges
before the fiscal, Bigornia, offered to pay P259, the amount which Aya, in the
said receipt of May 4, 1929, fixes as the balance then due.
This court is convinced from a careful examination of the record that
Attorney Bigornia was guilty of breach of trust and misappropriation of funds at
the time he collected the sums of money aforesaid on the judgment in favor of
his client, and appropriated them to his own use. Moneys collected by an
attorney on a judgment in favor of his client are trust funds and should be
immediately paid over to the client, less such proper deductions as may be
allowed by law.
In this case, there was gross abuse of such trust.
It is the opinion of the court that the license to practice law of the
respondent should be suspended for six months from and after this decision
becomes effective, and thereafter until he pays the balance, if any, which he
owes to his former, client Aya, such payment to be shown by proper receipt filed
in this cause; it is so ordered this 16th day of July, 1932.
Avanceña, C. J., Street, Malcolm, Villamor, Ostrand, Villa-Real, Abad
Santos, Hull, Vickers, and Imperial, J., concur.
[1] G. R. No. 24632, Aya
vs. Cuntapay, not reported