G.R. No. 15709. October 19, 1960
IN THE MATTER OF PETITION FOR PROHIBITION OF DAMASO CAJEFE. CECILIO CAJEFE, ETC., ET AL., PETITIONERS, VS. THE HON. FIDEL FERNANDEZ, JUDGE, COURT OF FIRST INSTANCE, CATBALOGAN, …
REYES, J.B.L., J.:
against Eugenio Bardaje, Cecilio Cajefe, and Damasino Cajefe in the Justice of
the Peace Court of Santa Rita, Samar, involving a parcel of land situated in
that municipality. During the pendency of the case, plaintiff prayed for the
issuance of a writ of preliminary injunction to be placed in the possession of
the premises, and upon his filing of a bond in the amount of P600, the motion
was granted. Defendants, however, filed a counterbond in the sum of P1,200, with
Bernardo Orosa and Feliciana Bardaje as bondsmen. Thereupon, the writ of
preliminary injunction was lifted, and defendants remained in the possession of
the land in question.
On September 26, 1957, judgment was rendered by the justice of the peace
court in favor of plaintiff, ordering defendants to restore to him possession of
the land in dispute and to pay him P300 actual damages and P100 attorney’s fees.
Defendants appealed to the Court of First Instance. No motion for immediate
execution of the judgment was, however, filed by plaintiff either in the
inferior court or in the court of first instance, so that defendants continued
to possess the land in question pending the appeal.
On February 19, 1958, the Court of First Instance of Samar rendered judgment
in the case, declaring plaintiff to be the lawful possessor of the land in
question, and condemning the defendants to vacate the same and pay plaintiff
damages of P90 for the year 1956, P360 for the year 1957, and P90 for every
quarter thereafter until delivery of the land in dispute to plaintiff is
effected. Defendants received copy of the decision on February 23, 1958, and
they interposed no appeal.
The judgment having become final and executory, plaintiff, on July 12, 1958,
moved for the execution thereof, and an order of execution was accordingly
issued. Because the provincial sheriff could not find sufficient properties of
the defendants to satisfy the judgment for damages and costs, plaintiff filed a
petition ex parte for an order of execution against the counterbond
posted by the defendants in order to lift the writ of preliminary injunction
issued in the inferior court, which petition the court granted. Notified of the
order of execution against the bond, defendants moved for the reconsideration
thereof on the ground that the same was null and void for having been issued
without notice to them and without giving them their day in court, and that
furthermore, said bond was good only for the lifting of the writ of preliminary
injunction in the justice of the peace court but not for the purpose of
satisfying the award of damages to plaintiff in the court of first instance.
Reconsideration having been denied, defendants filed a petition for certiorari
before this Court (G. R. No. L-14831), but for one reason or another, the
petition was dismissed for lack of merit. In the meantime, the provincial
sheriff, acting on the order of t execution, advertised for sale at public
auction on July 28, 1959 the real properties posted by defendant’s bondsmen to
secure the bond in question. To enjoin the sale, defendants and their bondsmen
filed with this Court the present petition for prohibition. It appears, though,
that four days after the petition was filed and before the submission of
respondents’ answer, the sale sought to be enjoined had already taken place on
the date set, July 28, 1959.
We find that the writ of execution against petitioners’ counterbond is null
and void for having been issued without notice to defendants’ sureties and after
the judgment on the merits had already become final and executory.
The present case falls squarely within the doctrine laid by this Court in the
case of Alliance Insurance & Surety Co., Inc. vs. Hon. Edmundo S.
Piccio, et al., 105 Phil., 1196. There, a writ of preliminary injunction was
issued by the Court of First Instance pendente lite in a case for
recovery of possession of property and damages, which writ was dissolved upon
defendants’ filing a counterbond. After trial the court rendered judgment
ordering defendants to deliver possession of the property in question to
plaintiff and to pay the latter the amount of P8,416 as damages. The Court of
Appeals affirmed the judgment in toto. After the case was remanded to
the court of origin, plaintiff moved for execution. The writ was, however,
returned unsatisfied because defendants had no properties with which to satisfy
the judgment. Whereupon, plaintiff filed a motion for the issuance of an
alias writ of execution against the surety on the defendant’s
counterbond to lift the writ of preliminary injunction issued in the trial
court, and the motion was granted. On petition for certiorari to this Court by
the surety, we held, after reviewing all the cases previously decided by us on
the matter, that, where plaintiff’s claim for damages had already been awarded
in the main decision without notice to the surety and the decision had
already become final and executory, said claim can no longer be pressed against
the surety, because to hold the surety liable, notice to it should be given
either before the trial or, at the latest, before entry of final judgment, so
that an award for damages against it may be included in said final judgment,
pursuant to section 9, Rule 60, in relation to section 20, Rule 59, of the Rules
of Court, to wit:
“Sec. 9. Judgment to include damages against party and sureties.—
Upon the trial the amount of damages to be awarded to the plaintiff, or to the
defendant, as the case may be, upon the bond of the other party, shall be
claimed, ascertained, and awarded under the same procedure as prescribed in
section 20 of Rule 59.” (Rule 60, Injunction).“Sec. 20. Claim for damages on plaintiff’s bond on account of illegal
attachment.—If the judgment on the action be in favor of the defendant, he
may recover, upon the bond given by the plaintiff, damages resulting from the
attachment. Such damages may be awarded only upon application and after proper
hearing, and shall be included in the final judgment. The application must be
filed be-fore the trial or, in the discretion of the court, before entry of the
final judgment, with due notice to the plaintiff and his surety or sureties,
setting forth the facts showing his right to damages and the amount thereof.
Damages sustained during the pendency of an appeal may be claimed by the
defendant, if the judgment of the appellate court be favorable to him. by filing
an application there-with, with notice to the plaintiff and his surety cr
sureties, and the appellate court may allow the application to be heard and
decided by the trial court.” (Rule 59, Attachment.)
It has been argued that the reference to section 20 of Rule 59 does not apply
to counterbonds posted to lift preliminary injunctions already issued, for the
reason that the sureties in such counterbonds are aware from the very first of
the existence of a claim for damages, and that the rule applicable to such
counterbonds is not section 20 but section 17 of Rule 59. We do not believe such
a distinction is warranted in the case of injunctions, since the express terms
of section 9 of Rule 60, already quoted, “the amount of damages to be awarded to
the plaintiff or to the defendant . . . upon the bond of the other
party,” are broad enough to cover both kinds of bonds, whether posted to
obtain the issuance of a preliminary writ of injunction or filed to secure its
dissolution; and Rule 59 makes section 20 thereof applicable to either. To apply
the terms of section 20, Rule 59 only to bonds posted to obtain writs of
injunction would leave vague and uncertain the procedure for assessing damages
against the sureties in counterbonds for the dissolution of such writ. This
Court has already settled the procedure to be followed in proceeding against
bonds in Del Rosario vs. Nava, 95 Phil., 637; 50 Off. Gaz. (9) 4189.
The fact that the surety in an injunction counterbond is aware that damages
are being claimed against his principal, while sureties in a bond to obtain a
writ of injunction do not know whether the enjoined party will or will not claim
damages subsequently, is not substantial enough to warrant a distinction in
treatment, since mere allegation of damages is not proof thereof. Even if the
counterbondsmen know that the party who originally obtained the dissolved
injunction is claiming damages, the truth and extent of such damages remain
dependent upon subsequent proof, and the counterbondsmen are certainly entitled
to be notified and heard on the question before final judgment against them is
rendered; nor do we see any justification why the uncertainty of a
counterbonds-man’s liability should be prolonged beyond the entry of the
judgment that finally settles the responsibility of his principal.
The diverse rule in section 17 of Rule 59 for counterbonds posted to obtain
the lifting of a writ of attachment is due to these bonds being security for the
payment of any judgment that the attaching party may obtain; they are thus mere
replacements of the property formerly attached, and just as the latter may be
levied upon after final judgment in the case in order to realize the amount
adjudged, so is the liability of the countersureties ascertainable after the
judgment has become final. This situation does not obtain in the case of
injunction counterbonds, since the sureties in the latter case merely undertake
“to pay all damages that the plaintiff may suffer by reason of the continuance
… of the acts complained of” (Rule 60, section 6) and not to secure payment of
the judgment recovered.[1] We, therefore,
hold that the court below acted without jurisdiction in issuing a writ of
execution against the sureties of defendants in this case on their counterbond
to lift the writ of preliminary injunction in the justice of the peace court,
for lack of notice to and hearing of said sureties, and after the judgment in
the case had long become final and executory. And as the writ of execution
against the bond is null and void, the execution sale conducted by the
provincial sheriff pursuant thereto is also completely null and void and should
be set aside.
Respondents claim, however, that prohibition is not the proper remedy in this
case, the public auction sale sought to be enjoined having been already
accomplished, prohibition being available only to prevent, not to correct, an
act or proceeding. Although prohibition is, indeed, a preventive and not a
corrective remedy, it does not mean, however, that no affirmative relief may be
given petitioners in this case. For it is not the title or caption of a
pleading, but the substance and averments thereof, that is controlling, and this
Court has held time and again that in the interest of justice, although a
petition is styled certiorari, it may be considered a petition for mandamus if
the facts alleged make out a case for the issuance of the latter writ,[2] or, conversely, a petition for mandamus
may be considered one for certiorari[3].
Similarly, the present petition, which makes out a petition for certiorari to
annul the writ of execution in question and the public auction sale conducted
pursuant thereto, may be considered as such to justify the issuance of the writ
of certiorari for the nullification and setting aside of said writ of execution
and sale.
As for respondent’s claim that the present petition ia fatally defective
because it is not properly verified, that is, counsel who verified the petition
did not swear that the contents thereof are true of his own knowledge but only
“to the best of his knowledge and belief”; the claim is untenable because it is
only when the person verifying is other than the attorney who signs the pleading
that the affiant must state that the allegations thereof are true of his
knowledge, but when the complaint is signed by the attorney, the latter’s oath
couched in the usual form “Subscribed and sworn to before me, etc.” is
substantial compliance with the rules.[4]
Besides, it has been held that where the affiant swears that the contents of the
complaint “are true to the best of his knowledge, information and belief”[5] or “to the best of his knowledge and
belief,”[6] verification is
sufficient.
Wherefore, the writ of execution and public auction sale complained of in
this petition are declared null and void and hereby set aside, with costs
against respondent Mariano Cojuangco.
Bengzon, Padilla, Bautista Angelo, Conception, Barrera, Gutierrez
David, and Paredes, JJ., concur.
[1] See concurring opinion, Allliance
Insurance Co. vs. Piccio, ante.
[2] Concepcion vs. Vera, et
al., 67 Phil., 122; San Agustin vs. Barrios, et al., 66 Phil., 173;
Quizon vs. Arellano, G.R. No. L-1461, Dec. 28, 1951; Makabenta
vs. Bocar, 95 Phil., 634; 50 Off. Gaz., 3549.
[3] Tambunting de Tengco vs.
San Jose, et al., 97 Phil., 491.
[4] Arambulo, et al. vs.
Perez, 78 Phil., 387.
[5] Madrigal vs. Rodas, 80
Phil., 252.
[6] Lim Bonfing y Ramos, Inc.
vs. Rodriguez, 72 Phil., 586, 587-588.
DISSENTING OPINION
PARAS, C. J.:
I dissent for the same reason stated in my dissenting opinion in the case of
Alliance Ins. & Surety Co. vs. Piccio, et al., cited in the opinion
of the majority.
LABRADOR, J.:
I dissent for the reasons stated in my dissent in case of Alliance Ins. &
Surety Co. vs. Piccio cited in the decision.
Writ set aside.