CRISTETA ALMARZA, WITH HER HUSBAND LUIS DALISAY, AND ESTEBAN MORALDA, PETITIONERS, VS. FERNANDO SALAS, JUDGE OF THE COURT OF FIRST INSTANCE OF ILOILO, ENCARNACION NELLAMA AND RU…

This is a petition for the extraordinary writ of prohibition. Its
purpose is to prevent the respondents from executing a judgment
rendered by the Court of First Instance of the Province of Iloilo in an
action for the detention of a certain piece or parcel of land, and
damages.

It appears from the record that on or about the
14th day of April, 1923, the respondent Encarnacion Nellama commenced
an action in the court of the justice of the peace of the municipality
of Miagao, of the Province of Iloilo, to recover of the therein
defendants, Esteban Moralda and Petra Moralda, the possession of a
certain piece or parcel of land located in the barrio De Valencia, of
said municipality, composed of about one cavan de semilla de palay,
more or less, and prayed for damages in the sum of P25 for the unlawful
detention of said parcel of land. On the 12th day of May, 1923, the
justice of the peace of said municipality rendered a judgment in favor
of said plaintiff and against said defendants, ordering and directing
the latter to deliver to the former the possession of said parcel of
land and to pay damages in the sum of P25 and the costs. From that
judgment of the justice of the peace the defendants appealed to the
Court of First Instance. To perfect said appeal the defendants executed
and delivered the usual bond required by law, with the petitioners
herein as bondsmen.

The record contains some confusion
concerning the amount of said bond. In one part of the petition it is
alleged that the bond was for the sum of P50, or double the amount of
the judgment for damages of the justice of the peace, while in another
part of the petition it appears that the bond was for the sum of P500,
and in addition thereto the sum of P9 for costs. In the Court of First
Instance the original plaintiff instead of renewing the complaint
presented in the court of the justice of the peace, presented
practically a new complaint in which he prayed for the possession of
said parcel of land together with damages for the sum of P100 instead
of P25, and costs. The record does not disclose what was the defense of
the original defendants in the Court of First Instance.

Upon
the trial of the issue presented in the Court of First Instance the
respondent judge rendered a judgment in favor of the original plaintiff
and against the original defendants, ordering and directing the said
defendants to deliver to the plaintiff the said parcel of land and to
pay P100 as damages together with costs. The original defendants having
failed to satisfy said judgment, an execution was issued thereon and
placed in the hands of the sheriff, directing and ordering him to
collect of the defendants, including the bondsmen on appeal, the sum of
P500 and costs. The lower court justified the issuance of said
execution for the sum of P500 as the amount of the bond, instead of for
P50, upon the ground that the said bond was in truth and in fact a bond
for the sum of P500. After repeated motions for reconsideration of the
order directing the execution, and many delays, the present petition
was presented.

Upon the presentation of the petition the
respondents were required to show cause why the prayer thereof should
not be granted. In answer to that order the respondents demurred,
alleging, first, that the facts stated in the petition were not
sufficient to constitute a cause of action justifying the granting of
the writ of prohibition and, second, that the petition was ambiguous,
unintelligible and vague. Upon the issue thus presented, the cause was
submitted to this court without argument.

It is argued pro
and con by the respective parties, that the respondent judge was
without jurisdiction to issue a writ of execution upon said judgment
against said bondsmen without a further hearing, contending at the same
time that the bond was for P50 and not for P500. The question of the
amount of the bond was fixed by the lower court, and the record
contains no fact or facts justifying us in arriving at a different
conclusion. It has been held in numerous decisions by this court, that
the sureties on a supersedeas bond were jointly and severally
liable with the principal debtor, and that an execution might issue
against their property, concurrently with the execution against the
property of the principal. (Molina vs. De la Riva, 7 Phil., 345; Chinese Chamber of Commerce vs. Pua Te Ching, 16 Phil., 406; and many other cases which might be cited; articles 1144, 1822, 1831 and 1856, Civil Code.)

Upon the question whether or not the plaintiff in an action of forcible
entry and detainer can change the character of his action on appeal in
the Court of First Instance, by increasing the amount of his damages,
is one upon which there is a difference of opinions in different
jurisdictions. Inasmuch as the question has not been squarely presented
to us, we express no opinion.

The entire record in fact
presents but two questions, and they are: First, Did the respondent
judge exceed his jurisdiction? And, second, Did the petitioners have
another adequate and speedy remedy? The first question must be answered
in the negative, for the reason that the judgment had become final and
the respondent had full jurisdiction to issue an execution thereon. The
defendants had another speedy and adequate remedy by an appeal. If they
were not satisfied with the judgment of the respondent judge, they
might have appealed. They did not avail themselves of that remedy. The
mere fact that the time has elapsed for the perfection of the appeal
does not create a right to the remedy prayed for. If the finding of the
respondent judge was that the appeal bond was for P500 instead of P50,
then the petitioners had suffered no damages and they are simply being
required to comply with the contract which they voluntarily entered
into.

We find no reason nor foundation whatever for granting
the remedy prayed for. The same is, therefore, hereby denied, with
costs against the petitioners. So ordered.

Street, Malcolm, Villamor, Johns, and Villa-Real, JJ., concur.