G.R. No. 23700. March 18, 1925
BLOSSOM & CO., PETITIONER, VS. MANILA GAS CORPORATION, RICARDO SUMMERS, SHERIFF OF THE CITY OF MANILA, AND GEORGE R. HARVEY, JUDGE OF FIRST INSTANCE OF MANILA, RESPONDENTS.
OSTRAND, J.:
injunction,” it is in reality a petition for a writ of prohibition. The
petitioner alleges, among many other things, more or less immaterial,
that on or about October 16, 1923, in the City of Manila, in civil case
No. 24267, wherein one of the herein respondents, the Manila Gas
Corporation was plaintiff and the herein petitioner Blossom & Co.
was the defendant, a judgment in mortgage foreclosure proceedings was
rendered against the said Blossom & Co. ordering the payment of
P7,794.65 to the said Manila Gas Corporation, with interest thereon at
the rate of 8 per cent per annum, the judgment also providing that if
the defendant Blossom & Co. failed to satisfy the judgment within
ninety days from the time of the notification of said judgment, the
mortgaged land should be sold by the sheriff at public auction and the
proceeds of the sale applied towards the satisfaction of said judgment;
that from said judgment Blossom & Co, appealed to this court and on
October 18, 1924, the judgment of the Court of First Instance was
affirmed;[1] that the decision of this court became final on the 28th of the same month and the record was returned to the court below.
It is further alleged that on December 31, 1924, the respondent, the
Honorable George R. Harvey, Judge of the Court of First Instance of the
City of Manila, ordered that a writ of execution be issued against the
defendant in said case No. 24267; that on January 6, 1925, the same
respondent modified his order of December 31, 1924, by ordering “that
the judgment be executed; ” that on or about January 9, 1925, the
respondent Ricardo Summers, in his capacity as sheriff of the City of
Manila and in compliance with the aforesaid orders, advertised in the
newspapers of the City of Manila that the mortgaged property would be
sold at public auction to the highest bidder in front of the court
house in Manila, at 9 o’clock a. m. on February 6, 1925.
The
petitioner further alleges that the execution of the judgment is
premature inasmuch as the period of three months from the date of the
judgment provided for in section 256 of the Code of Civil Procedure for
the execution of a judgment in foreclosure proceedings had not then
expired; that the interests of the petitioner will suffer grave injury
from the premature execution of the judgment; and that the petitioner
has no other plain, speedy, and adequate remedy in the ordinary course
of law than to apply to this court for an order enjoining the
respondents from proceeding with the aforesaid sale.
Upon
being required to answer the petition within five days, the respondents
in lieu of an answer filed a demurrer which will be considered as an
answer admitting the material allegations of the petition. The case was
thereupon set down for hearing on February 17, 1925, at which hearing
the parties were represented by counsel and arguments submitted.
The only question presented for our consideration is whether, in the
event a judgment for the plaintiff in a foreclosure proceeding is
affirmed on appeal, the three months stay of execution allowed the
defendant by section 256 of the Code of Civil Procedure is to be
counted from the date of the judgment of the lower court or whether it
should be counted from the date of the final determination of the case
by the appellate court.
The respondents maintain that under
the second paragraph of section 506 of the Code of Civil Procedure the
judgment must, in regard to its execution, be treated as if no appeal
had been taken and that three months from the date of the original
judgment having expired it might be executed immediately upon the
remittitur. We cannot accept this view and do not think that the
paragraph of the Code upon which the respondents rely supports their
contention. The section in which it is found reads as follows:
“Certificate of judgment to be remitted the Court of First Instance.—In
all cases heard by the Supreme Court on bills of exception, its
judgments shall be remitted to the Courts of First Instance from which
the actions respectively came into the Supreme Court; and for this
purpose it shall be the duty of the clerk of the Supreme Court, within
ten days after the close of any term, to remit to the clerks of Courts
of First Instance, notices of all judgments of the Supreme Court in
actions brought from the Courts of First Instance respectively. Upon
receiving the notice so remitted, the clerk of the Court of First
Instance shall enter the same upon his docket and file the notice with
the other papers in the action.“The judgment so remitted
shall be executed by the Court of First Instance, in the same manner as
though the action had not been carried to the Supreme Court. But the
Supreme Court may, by special order, direct any particular judgment to
be remitted to the proper Court of First Instance at any time, without
awaiting the end of the term.“It shall likewise be the
duty of the clerk of the Supreme Court, within ten days after the close
of any term, to remit to the clerks of the Courts of First Instance,
with the notices of all judgments of the Supreme Court in this section
referred to, likewise all the original documents and the record of the
actions transmitted by the clerk of the Court of First Instance, to the
clerk of the Court of First Instance, in order that the files of the
action may remain together in that court.”
As will be seen, the paragraph in question relates to the manner
of executing the judgment and says nothing about the time. As to the
time for the execution, section 144 of the Code of Civil Procedure
provides that, except by special order of the court, no execution shall
issue upon a final judgment until after the period for perfecting, a
bill of exceptions has expired and that the filing of a bill of
exceptions shall of itself stay execution until the final determination
of the action, unless for special reasons stated in the bill of
exceptions the court shall order that execution be not stayed. In other
words, the filing of the bill tolls the running of time pending the
final disposition on appeal and we can see no valid reason why this
should not apply to the three months period allowed the judgment debtor
by section 256 to satisfy the judgment before execution issues.
That such is the intent of the statute seems fairly clear. The
defendant in a foreclosure proceeding has no right of redemption from
the judicial sale of the mortgaged property and the purpose of the
three months stay of execution is very evidently to give the judgment
debtor time and opportunity to make the necessary arrangements for the
payment of the debt after it has been definitely determined that the
debt is due and must be paid by him. In the event of an
appeal there is no definite determination of the case until it is
finally disposed of by the appellate court and if we were to hold that
the appeal did not suspend the running of the period mentioned, the
result would necessarily be that the defendant would be deprived of the
time granted him by the statute to provide funds for the satisfaction
of the judgment before its execution. We therefore hold that the
running of said period is suspended during the appeal and as the case
cannot be said to be finally determined on appeal while the record
remains with the appellate court, it logically follows that the, period
does not begin to run until the remittitur of the record to the court
below. In the present case, it is alleged in the petition and admitted
by the respondents that the decision of this court in the foreclosure
proceedings became final on October 28, 1924, and that the sheriff
initiated the execution of the judgment on January 9, 1925, only
seventy-three days after it became final.
It appearing that
the execution here in question was begun before the expiration of three
months from the final determination of the case, the petition is
granted and the respondents are prohibited from proceeding with the
execution until after the expiration of the period of three months from
October 28, 1924. The respondent, the Manila Gas Corporation, shall pay
the costs. So ordered.
Johnson, Malcolm, Villamor, and Romualdez, JJ., concur.
[1] Manila Gas Corporation vs. Blossom & Co., R. G. No. 22109, not reported.
SPECIALLY CONCURRING
JOHNS, J.:
This
case is presented on a demurrer to the petition, which in legal effect
admits all of the material allegations in the petition. Hence, as the
majority opinion says:
“The only question
presented for our consideration is whether, in the event a judgment for
the plaintiff in a foreclosure proceeding is affirmed on appeal, the
three months stay of execution allowed the defendant by section 256 of
the Code of Civil Procedure is to be counted from the date of the
judgment of the lower court or whether it should be counted from the
date of the final determination of the case by the appellate court.”
Based on such admissions, I agree with the majority opinion.
As it points out, among other things, section 506 of the Code of Civil Procedure says:
“The
judgment so remitted shall be executed by the Court of First Instance,
in the same manner as though the action had not been carried to the
Supreme Court.”
If it be a fact that an
appeal is dismissed or that no final judgment is rendered by this
court, and that the judgment of the lower court remains in legal force
and effect as of the day when it was rendered, and that an execution is
issued upon the original judgment as it was rendered in the lower
court, another and a different question would be presented. But for the
reasons above stated, I concur in the result.