GLICERIO ROMULO AND ROQUE V. DESQUITADO, PLAINTIFFS AND APPELLEES VS. ESTEBAN DASALLA AND ERIBERTO A. UNSON, AS PROVINCIAL SHERIFF AND CLERK OF COURT, COURT OF FIRST INSTANCE OF…

Romulo versus Dasalla

The Case

This is an appeal on pure questions of law from the Court of First Instance of Davao. Glicerio Romulo and Roque Desquitado sued Esteban Dasalla and the provincial sheriff, who was also clerk of court, to annul a writ of execution, an attachment, a public auction sale, and an absolute deed of sale, all of which had been used to collect a bill of costs in an earlier land case. The case matters because it fixes two enduring rules: costs are not executable until they are properly taxed under the Rules, and a writ of execution that makes defendants solidarily liable when the judgment made them only jointly liable is void for varying the judgment it enforces.

Procedural History

In the earlier case, the Court of Appeals reversed the trial court and held the plaintiffs entitled to recover possession of the property, with costs. Dasalla then petitioned the Court of First Instance of Davao for execution, attaching a verified bill of costs. The court ordered a writ issued, the clerk issued it, and the sheriff levied on two parcels of land owned by Romulo and sold them at public auction to Dasalla as sole bidder. After the redemption year lapsed, the sheriff executed an absolute deed of sale and the court issued a writ of possession. Romulo filed motions for reconsideration and Desquitado moved to intervene; all were denied, and they appealed to the Court of Appeals. Meanwhile, on July 5, 1956, they filed this separate action in the Court of First Instance of Davao to declare the execution and sale void. The trial court ruled for them, declaring the writ, the levy, the auction sale, and the absolute deed of sale null and void. The case reached the Supreme Court on appeal involving questions of law.

Facts

In the earlier land case, the Court of Appeals rendered judgment in August 1954, declaring the plaintiffs entitled to recover possession of the property, with costs. In January 1955, Dasalla asked the lower court for execution, attaching a verified bill of costs of 387 pesos and 50 centavos, and asking that the three defendants be ordered to pay jointly and severally. The court ordered a writ issued, and the clerk issued it in February 1955.

To satisfy the costs, the provincial sheriff attached two parcels of land owned by Romulo, covered by a transfer certificate of title. After levy and publication, the two parcels were sold at public auction in June 1955 to Dasalla, the sole bidder, for 592 pesos and 50 centavos, covering the costs, publication expenses, and sheriff's fees. In March 1956, Romulo sold all three parcels under that title to Desquitado for 7,000 pesos, and the vendee took possession.

The redemption year expired without redemption. In June 1956, the sheriff executed an absolute deed of sale in Dasalla's favor, which was registered, and in July 1956 the court issued a writ of possession. Romulo's motions for reconsideration and Desquitado's motion to intervene were denied. The present action to annul the execution and sale followed.

Issues

• Whether or not the costs in the earlier case had been properly taxed.
• Whether or not the writ of execution, the auction sale, and the absolute sale are null and void.
• Whether or not the appellees may still question the validity of the execution after the certificate of absolute sale had been executed in Dasalla's favor.
• Whether or not the matter litigated in the earlier case is the same as the matter brought in the present case.

Applicable Provisions

Section 8 of Rule 131 of the Rules of Court provides:

In inferior courts, the costs shall be taxed by the justice of the peace or municipal judge and include them in the judgment. In superior courts, costs shall be taxed by the clerk on five days written notice given by the prevailing party to the adverse party. With this notice shall be served a statement of the items of costs claimed by the prevailing party, verified by his oath or that of his attorney, objections to the taxation shall be made in writing, specifying the items objected to. Either party may appeal to the court from the clerk's taxation. The costs shall be inserted in the judgment if taxed before its entry, and payment thereof shall be enforced by execution.

This is the procedure the Court holds must be strictly followed before costs may be executed.

Articles 1207 and 1208 of the New Civil Code are invoked by the Court, through the older articles 1137 and 1138, on the presumption that an obligation for costs is joint, not solidary:

Examining the language of the judgment for costs, which is set out in the foregoing statement of facts, it is manifest that it is merely a joint judgment against the protestado y tercerista, and does not permit construction or interpretation as a joint and several judgment. No arguments is necessary. It is sufficient to cite here articles 1137 and 1138 of the Civil Code as to the rule in this jurisdiction.

This governs the nature of the defendants' liability for costs and exposes the writ's error in making them solidarily liable.

Ruling

On the first issue, the Court held that the costs were never taxed. The procedure in Section 8 of Rule 131 must be strictly complied with before execution as to costs may be had. Even a final judgment granting costs does not make the costs themselves final, for the law prescribes steps first, namely assessment by the clerk and appeal from that assessment. The deputy clerk testified that the bill of costs was merely attached to the petition and that he prepared the writ without costs having first been taxed. Had costs been properly taxed, the assessment itself would have been presented as proof.

On the second issue, the Court held the writ, the auction sale, and the absolute sale all null and void, on two grounds. First, they contravened Section 8 of Rule 131. Second, the appellate judgment said only "with costs," so the obligation of the three defendants was presumed joint under Articles 1207 and 1208, yet the writ ordered them to pay jointly and severally. The established rule is that where the judgment does not state joint and several liability, none of the defendants may be compelled to satisfy it in full. An execution order must conform substantially with the decision and must not vary its terms; otherwise it violates the constitutional guarantee against deprivation of property without due process of law.

On the third issue, the Court held that estoppel did not apply, since the action was filed barely a month after the deed of sale. Because the absolute sale was void, Romulo's right to annul it was not barred by his failure to redeem; there was no need to redeem a void sale.

On the fourth issue, the Court held that the matter was not the same. The earlier case settled Dasalla's right to costs, which was not being questioned. What Romulo assailed was the amount of costs, the nature of his liability, and the manner of enforcement. Neither res judicata nor litis pendentia was available.

Doctrine

First, costs awarded in a judgment cannot be enforced by execution until they are taxed by the clerk of court upon notice, with a verified statement of items and the opportunity to object and appeal, strictly as Section 8 of Rule 131 requires. A writ issued before taxation is void, and so is the sale made under it.

Second, a writ of execution must conform substantially with the judgment it enforces and must not vary its terms. Where the judgment imposes only joint liability for costs, a writ making the defendants solidarily liable is void, for it would deprive them of property without due process of law.

Third, the expiration of the redemption period does not bar an action to annul a void judicial sale, because there is no obligation to redeem what is void.

Disposition

The Supreme Court affirmed the decision of the trial court, with costs, holding the writ of execution, the levy, the auction sale, and the absolute deed of sale null and void.

Remember This

Memorize this line: no execution for costs until the clerk has taxed them, and no writ that makes solidary what the judgment made merely joint. Examiners use this case on the taxation of costs under the Rules and on the rule that an execution must not vary the judgment it enforces.