G.R. No. 30004. December 29, 1928
FILOMENA MARTINEZ, PETITIONER, VS. PEDRO CONCEPCION, JUDGE OF FIRST INSTANCE OF MANILA, EL COLEGIO DE LA INMACULADA CONCEPCION DE LA CONCORDIA AND THE PROVINCIAL SHERIFF OF CAVI…
ROMUALDEZ, J.:
court seeking to have an order issue to the respondent Judge Pedro Concepcion
directing him to forward to this court the record in case No. 25961 of the Court
of First Instance of Manila, entitled Colegio de la Inmaculada Concepcion de la
Concordia vs. Jose Martinez, for review; that the proper order issue to all the
respondents enjoining them from taking any steps relative to the continuation of
the attachment and sale of the petitioner’s property at public auction until
this court has rendered judgment, and annulling the writ of execution issued in
said case. Wherefore, the petitioner prays as ancillary relief, that an
injunction be issued; (a) To Judge Pedro Concepcion directing him to vacate his
writ of execution of April 11, 1928, against the sureties in said civil case No.
25961; (b) to the Colegio de la Inmaculada Concepcion de la Concordia, its
agents, attorneys, representatives and mandataries, and any other persons who
might aid and represent it, restraining them from asking for the execution of
any judgment rendered by the respondent Judge against the petitioner; and (c) to
the provincial sheriff of Cavite or his deputies to refrain from taking any
action with reference to the attachment of the herein petitioner’s property, and
to suspend the public auction sale of said property announced for July 13, 1928,
at 9 a. m., at Cavite, Cavite, granting the petitioner any other just and
equitable remedy.
On July 12, 1928, the writ of injunction applied for was issued
by a member of this court and on the 26th day of the same month and year the
respondents filed an answer praying for the dismissal of the action and that the
petitioner be sentenced not only to pay the costs of this action, but also to
reimburse the Colegio de la Inmaculada Concepcion de la Concordia for all
expenses occasioned by the fact that the auction was not held on July 14, 1928.
Counsel for the petitioner replied to this answer on July 31,
1928.
Having set the day, oral argument was had on the case on July
31, 1928.
In a petition presented on August 6, 1928, the respondents
through counsel insisted upon, their prayer for dismissal, giving as a reason
the fact that the defendant in said civil case No. 25961 took an appeal, which,
according to said lawyer, confirms his contention that the certiorari is not the
proper remedy, but the appeal.
On August 11, 1928, counsel for the petitioner filed an
opposition to the petition for dismissal formulated by the attorney for the
respondents.
The facts pertinent to the case are as follows:
On May 22, 1924, the herein petitioner Filomena Martinez
subscribed a bond in the sum of P1,000 for the dissolution of the preliminary
attachment ordered in said civil case No. 25961 of the Court of First Instance
of Manila.
On October 29,1925, said cause was dismissed for failure of the
plaintiff to prosecute, the lower court issuing the following order:
“Neither party having taken any steps in the prosecution of
this case from October 21, 1924, to date.“It is hereby ordered that the same be dismissed without
special pronouncement as to costs, and without prejudice to reinstating the
action by the payment of the proper docketing fee.“So ordered.”
On November 7, 1925, the party plaintiff prayed that said
dismissal of the case be set aside.
On November 14, 1925, the lower court decided the petition by
an order which, literally, is as follows:
“Having heard the petition presented by the attorney for the
plaintiff praying that the order of dismissal issued in this case be set aside,
it is hereby denied unless the proper docketing fee be paid to the clerk.“So ordered.”
On December 28, 1925, the parties in said civil case, No.
25961, filed the following stipulation with the trial court:
“Come now the parties in the above-entitled case and
respectfully submit the present stipulation as follows, to wit:“That this case be ordered reinstated, setting aside the order
of dismissal, and just as soon as this stipulation is approved the plaintiff
shall pay the proper docketing fee to the clerk of this court.“Manila, December 28, 1926 (should be 1925).
“J. R. SERRA
“438 Rizal Ave., Manila
“Attorney for defendant
“GREGORIO PERFECTO
“93 Legaspi, Manila
“Attorney for the defendant (should be plaintiff)”
On January 22, 1926, the trial court issued the following
order:
“In accordance with the foregoing stipulation of the parties,
the order of dismissal shall be set aside as soon as the proper fee is paid to
the clerk of the court.”
On February 4, 1926, the plaintiff, alleging payment of the
proper fee, asked that the order of dismissal of the case be set aside.
On February 6, 1926, the trial court granted the petition
issuing an order which reads:
“The fee of the clerk of this case having been paid again, and,
in accordance with the petition of the attorney for the plaintiff, the order of
dismissal of October 29th of last year is hereby set aside.”
A trial having been had and judgment rendered against the
defendant, the latter appealed therefrom to this court, which, deciding the
appeal, on October 7, 1927, sentenced the defendant to pay the plaintiff the sum
of P717.10 with legal interest and costs. Then the order of execution having
issued, it was found that the defendant was insolvent, for which reason, upon
petition of the plaintiff Colegio de la Inmaculada Concepcion de la Concordia,
the trial court on April 11, 1928 ordered the issuance of a writ of execution
against the defendant’s sureties, the said defendant’s automobile, which had
been attached, having disappeared, the release of which from the attachment was
ordered because said sureties furnished a bond.
Steps were taken to comply with the last writ of execution,
announcing the public auction sale of some realty belonging to the herein
petitioner, one of the said sureties.
But the latter, believing her rights to be injured and alleging
that the respondent Judge of First Instance had no authority to order the
execution of such judgment against the aforesaid sureties, and in doing so had
exceeded its jurisdiction, instituted the present certiorari proceedings.
The question presented for our consideration is whether or not
the bond given by the aforementioned sureties continued in effect in spite of
the dismissal of the case ordered by the Court of First Instance on October 29,
1925, said dismissal not being imputable to said sureties, and the latter not
having taken any part in the stipulation by and between the parties on December
28, 1925, agreeing to a reinstatement of the case.
It should be observed that the order of November 14, 1925,
issued before the dismissal ordered on October 29, 1925, became final,
substantially modified said order of October 29th, the order of November 14th
having the effect, although indirectly, of setting aside the dismissal upon
payment of the docketing fee. The setting aside of the order of dismissal having
been thus conditionally granted, the case continued to subsist although the
proceedings therein were suspended while the condition imposed for the payment
of the said fees was not fulfilled, for which the court had fixed no period.
It is to be observed, moreover, that the dismissal ordered on
October 29, 1925, could not have the effect of terminating the case while it was
not entered on the docket of the court as required in the last part of
subsection 4 of section 127 of the Code of Civil Procedure. And it does not
appear that such entry was made. At any rate, said order of dismissal, as we
have said, was duly modified before it became final.
Consequently, by virtue of the order of November 14, 1925, the
case, strictly speaking, was not dismissed but simply suspended, that is, to use
the English juridical phraseology, there was a “stay” of the proceedings. Such
suspension or “stay” is within the discretion of the courts and may be granted
for several causes.
“A stay of proceedings is a matter so largely within the
discretion of the court that no attempt seems to have been made specifically to
enumerate the grounds authorizing it. Stays have been most frequently granted
upon the ground of another action pending, and as a means of enforcing the
payment of costs, but various other grounds have been recognized.” (1 C. J.,
1161, 1162.)
And in the footnote of the text cited, among the grounds for
such suspension or stay is the one which the trial court took into consideration
in the case before us, that is, the lack of the prosecution of the case for a
long time. Such footnote, in its pertinent part, is as follows:
“(a) Grounds authorizing stay.—(1) * * * (2) where an
unreasonable length of time has been allowed to elapse after the institution of
the action without taking any steps therein. (Bryan vs. Zimmerly, 16 Pa. Co.,
564.)'”
The condition of payment of said fee did not necessarily
signify the renewal of an action already dismissed, but was a sanction or
penally imposed on the plaintiff for failure to take any steps in the
proceeding. Such penal conditions in these cases may be imposed by the courts.
It may be seen from the part cited from Corpus Juris (vol. 1, pp. 1161, 1162)
that:
“Stays have been most frequently granted upon the ground of
another action pending, and as a means of enforcing the payment of costs, etc.”
(Italics ours.)
For this reason, from the time the order of November 14, 1925,
was issued, the original case remained in such a state of abeyance pending the
payment of the fee. That status quo could not, for the reasons stated, be
considered anything more than a mere stay of proceedings, and the court that
issued said orders thus understood it, when on January 22, 1926, in the face of
the stipulation of the parties that the case be reinstated (not that the action
be renewed, in the phraseology of the order of October 29, 1925, later
modified), it reiterated its order of November 14, 1925, absolutely promising to
sat aside the dismissal as soon as the proper fee was paid. As may be seen from
the copy of said order of January 22nd above quoted, its text, among other
things, says:
“* * * the order of dismissal shall be set aside as soon as the
proper fee is paid to the clerk of the court.”
And, indeed, when the said fee was paid the court, by its order
of February 6, 1926, set aside “the order of dismissal of October 29th of last
year.” And it should be noted, in confirmation of the conclusion that by the
last-named order the case was only reinstated and was not renewed, that there was
no new complaint, nor any new summons, nor new allegations, and the case
continued from the stage of the proceeding where it was left off by the stay.
The fact that the sureties did not participate in the agreement
to reinstate the case, is, in our opinion, of no importance. That agreement was
not to renew a case already finally dismissed, but only to reinstate a case
conditionally suspended.
During that stay of the case it is clear that the bond given by
the herein petitioner, and the scope and effects of which are discussed in the
present proceedings, continued and still continues to remain in full force and
effect.
It follows from this that the herein petitioner, by virtue of
such bond given by her, is still bound under the provisions of section 440 of
the Code of Civil Procedure, the respondent judge not having acted without or in
excess of his jurisdiction in ordering the execution of the aforesaid judgment
against the sureties in view of the insolvency of the principal obligor, the
defendant in said case.
For the foregoing, the petition for certiorari filed herein
must be, as it hereby is, denied, with costs against the petitioner, setting
aside the preliminary injunction herein issued. So ordered.
Avanceña, C. J., Johnson, Villamor, and Ostrand, JJ., concur.
DISSENTING
MALCOLM, J., with whom concurs VILLA-REAL, J.:
No one could quarrel particularly with the statement of facts
made in the majority decision. It is only as to the deductions drawn from those
facts that I am totally unable to agree. Also there is a void in so far as the
facts connect up with the law.
As mentioned in the majority decision, case No. 25961 of the
Court of First Instance of Manila, entitled Colegio de la Inmaculada Concepcion
de la Concordia vs. Jose Martinez, was dismissed on October 29, 1925, for the
failure of the parties to prosecute the action for more than a year “sin
perjuicio de poder renovarse la accion mediante el pago de los derechos de
registro correspondiente.” What was the effect of this dismissal? It meant that
the parties and the entire cause of action were out of court for every purpose
other than to carry the order into effect or to vacate or modify the same; in so
far as the particular action was concerned, it was the same as a judgment for
the defendant on the merits.
There followed the order of dismissal, another order dated
November 14, 1925, denying the motion by the plaintiff which asked for the
reinstatement of the case, a stipulation of the parties dated December 28, 1925,
for the reinstatement of the case, and an order confirming the reinstatement
dated February 6, 1926. In other words, from October 29, 1925, when the case was
dismissed until February 6, 1926, when the case was reinstated, more than three
months had elapsed. What was the effect of this delay? It meant that while it
was competent for the court in the exercise of ita discretion to reinstate the
case by consent during the same term, as this language is used in the United
States but which signifies, in the Philippines, before the judgment became
final, it was not within the jurisdiction of the court to do so after the
judgment became final. In the case of Veluz vs. Justice of the Peace of Sariaya
([1921], 42 Phil., 557), after defining a judgment of nonsuit, this court
remarked: “Of course, after the judgment becomes final, the court loses all
control to change, alter, or modify the same, except for the purpose of
correcting clerical errors.”
It is also to be noted that the right to renew the action
contemplated the payment of a new registration fee. What was the effect of this
proviso? The outward indicia of a new action is invariably the satisfaction of
the filing fee.
Again in all of the statements which have been made, it will
not escape notice that no mention at all has been made of the signers to
defendant’s bond for the dissolution of the attachment in the original action.
What was the effect of this? It meant that a principle of natural justice was
neglected when the stipulation was entered into by the parties and approved by
the court without the conformity of the bondsmen and without giving them notice
of any sort.
An analysis of the salient facts is now known to us. How about
the law? In dismissing the action, the Judge of First Instance was acting in
corformity with section 127 of the Code of Civil Procedure. This section
provides that “An action may be dismissed, with costs to the defendant, in the
following cases: * * * 3. By the court, when the plaintiff fails, for an
unreasonable length of time, to prosecute his action. In either of these three
cases a dismissal of the action shall not be a bar to another action for the
same cause; * * *.” (Italics provided.) It is difficult indeed to give to the
phrase “bar to another action” any other meaning than “bar to another action.”
In this connection it is the rule that whatever destroys the attachment, and
surely the dismissal of the action has this effect, will destroy liability on
the bond. Among other cases, that was the holding of this court in the decision
in Hi Caiji vs. Philippine Sugar Estates Development Co. ([1927], 50 Phil.,
592), written by Justice Johnson for a unanimous court of nine members.
The Philippine law on the subject of the dismissal of actions
was derived from the laws of California. In the early case of Dowling vs. Polack
([1861], 18 Cal., 625), it was the holding, that a judgment dismissing a suit
is, in effect, a final judgment in favor of defendant; and, although it may not
preclude the plaintiff from bringing a new suit, still for all purposes
connected with the proceedings in the particular action, the rights of the
parties are affected by it in the same manner as if there had been an
adjudication upon the merits. But particular attention is invited to the later
decision coming from the Supreme Court of California in the case of Hamilton vs.
Bell ([1898], 123 Cal., 93), which, on both facts and law, is on all fours with
the present proceeding. It was there said:
“HAYNES, C.—The question for decision arises out of the
following facts: In May, 1891, the ‘Auburn Opera House and Pavilion Association’
brought suit against George M. Hill to recover the sum of one thousand dollars,
claimed to be due upon contract, and caused a writ of attachment to be issued
therein under which money and other property was attached. On September 22,
1891, on the application of the defendant in said action, the court fixed the
amount of the bond or undertaking for the redelivery of the attached property at
fifteen hundred dollars, and the defendants in this action became the sureties
on such bond, and the attached property was released and delivered to the
defendant. In November, 1891, the cause came on for trial, and at the conclusion
of plaintiffs evidence the court granted defendant’s motion for a nonsuit. From
that judgment and an order denying a new trial the plaintiff appealed, and this
court, on March 9, 1893, reversed said judgment and order. (32 Pac. Rep., 587.)
On January 9, 1895, said cause was again tried, and the plaintiff had judgment
for the full amount of its claim and interest. Thereafter, in September, 1895,
execution was issued thereon, and was returned wholly unsatisfied; and on
November 25, 1895, said Auburn Opera House and Pavilion Association assigned to
George W. Hamilton, the plaintiff in this action, its said judgment and said
redelivery bond, and said Hamilton, after due demand for the delivery of said
property, or payment of its value, brought this action against the sureties on
said bond, and obtained judgment against them, and this appeal is from that
judgment and an order denying a new trial.“Appellants contend that the judgment of nonsuit entered
against the plaintiff in the action in which the attachment was issued operated
to discharge them from all liability upon said bond which was given to release
the property attached in that case.“Respondent’s contention is, in effect, that the judgment of
nonsuit having been reversed and the cause remanded for a new trial, and having
obtained a judgment upon such new trial it was a judgment recovered ‘in the
action’ in which the undertaking was given, and that therefore the defendants
are liable upon the undertaking.“But while it is true that the judgment rendered upon the
second trial was rendered in the same action, it does not follow that the
liability of the sureties upon said undertaking continued until the second
judgment was rendered. Indeed, it is quite clear that it did not.“The fact that in the case at bar the appellants gave an
undertaking for the redelivery of the property to the sheriff in case the opera
house association should recover judgment against the defendant in that action,
or would pay the value of the property so released, does not affect the
question. The dissolution of the attachment by the judgment of nonsuit
discharged the obligation of the sureties upon the bond. (Drake on Attachments,
secs. 341 b, c, and d, and cases there cited.) * * *.“We advise that the judgment and order appealed from be
reversed.“Belcher, C, and Britt, C, concurred.
“For the reasons given in the foregoing opinion the judgment
and order appealed from are reversed.“GAROUTTE, J., VAN FLEET, J., HARRISON, J.”
We thus find the prevailing decision resting on the proposition
that the court (1) may disregard the effect of the dismissal of an action, (2)
may disregard the finality of the judgment on a dismissal of an action after the
passing of the statutory period, (3) may disregard the payment of a filing fee
as indicative of a new action, (4) may disregard due process of law by holding a
party bound without notice and without hearing, (5) may disregard the exact
language of the controlling law, and (6) may disregard decisions interpreting
and enforcing that law found both in this jurisdiction and in the jurisdiction
from which the law was taken. To such a proposition I cannot bring myself to
give assent, and so am forced to dissent and to vote in favor of granting the
writ of certiorari and of prohibiting the trial judge from attempting to proceed
further to enforce an illegal order.
Petition denied.