ASUNCION NUEVA-ESPAÑA, SPECIAL ADMINISTRATRIX OF THE INTESTATE ESTATE OF THE DECEASED ATILANO MONTELIBANO, PLAINTIFF AND APPELLANT, VS. VICENTE MONTELIBANO ET AL., DEFENDANTS AN…

On
April 25, 1918, the defendant herein Vicente Montelibano instituted
civil case No. 1761 in the Court of First Instance of Occidental
Negros, praying in the complaint therein that judgment be rendered
against the plaintiff herein Atilano Montelibano in the sum of P14,000
together with interest thereon. Atilano Montelibano, the then
defendant, interposed various counterclaims and cross-complaints,
praying, among other things, that he be awarded the sum of P15,000 as
indemnity for damages he had suffered from the unjust and unwarranted
issuance to Vicente Montelibano of a writ of attachment against his
properties. In the aforesaid case, the trial court rendered the
following decision in connection with the counterclaim in question, to
wit:

“With respect to the sum of P15,000
claimed by the defendant from the plaintiff as indemnity for damages
suffered by him as a result of the preliminary attachment, this court
is of the opinion, in the first place, that the evidence presented does
not sufficiently justify the issuance of the writ of attachment in
question. Neither does this court believe that there is sufficient
evidence to support the defendant’s claim that he suffered damages
amounting to P15,000. According to Exhibit E, the properties attached
were: a lot; an unfinished house of mixed materials, and two small
houses built on said lot; a narra writing table; a two-wheeled carriage
(quiles); an Australian horse; a native horse; two sets of
harness; a four-circled chandelier, and a bull four years old. After
considering the evidence presented and the circumstances of the case,
the court estimates the damages suffered by the defendant from the
aforesaid attachment, at P500.

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“Wherefore, the court renders judgment:

“(a)
Sentencing the defendant to indemnify the plaintiff in the sum of two
thousand pesos (P2,000) together with legal interest thereon from May
1, 1918, until fully paid;

“(b) Holding that the
writ of attachment issued in this case was without just nor sufficient
legal ground and, therefore, the immediate cancellation thereof is
hereby ordered; and sentencing the plaintiff, for this reason, to
indemnify the defendant in the sum of five hundred pesos (P500); and

“(c) Holding that the defendant has a right, interest and participation in the sugar-cane which existed on the plaintiff’s hacienda,
‘Purisima Concepcion’, situated in Ymbang, within the municipality of
Silay of this province, at the commencement of this suit.

“In
all other respects, the plaintiff’s complaint and the defendant’s
cross-complaints and counterclaims are hereby dismissed. (Exhibit
A-11.)”

Both parties appealed from the
judgment thus rendered. Atilano Montelibano’s appeal was dismissed on
the ground of abandonment. After reviewing Vicente Montelibano’s
appeal, this court affirmed the judgment rendered by the trial court
therein.^[1]

The case was remanded to the court a quo
where a writ of execution was issued. There is a controversy as to
whether or not the judgment in question was ever executed, but the
trial court inferred from the evidence therein that it was finally
executed. We are inclined to believe likewise, in view of the
circumstances of the case. The deputy sheriff, in whose hands the writ
of attachment in question was delivered for compliance therewith, is
already dead and for this reason nobody could testify as to what had
really transpired. Neither had the certificate of compliance therewith
been introduced during the trial. At any rate, there are indications
sufficiently strong to support the trial court’s conclusion that the
judgment rendered in that case was executed and satisfied, and such
fact is corroborated further by the long time that has elapsed since
then.

Sometime, later, Atilano Montelibano, who is already
dead, filed a motion in the same case, praying that he be granted more
indemnity for damages occasioned him by the erroneous issuance of the
aforesaid writ of attachment. Inasmuch as five (5) years had already
elapsed from the date of the final judgment, it was thought that such
motion was untenable and that it was necessary to revive the said case
by instituting a new action. It is for this reason that the present
action under consideration was instituted, praying that a new judgment
for P147,953.97, together with interest thereon from December 17, 1921,
be rendered against Vicente Montelibano and his sureties in the writ of
attachment, as indemnity for damages suffered by him from the unjust
and unwarranted issuance of the aforesaid writ of attachment against
his properties.

The special administratrix of the estate of
Atilano Montelibano appealed from the trial court’s decision absolving
all of the defendants, with costs.

The trial court based its
decision appealed from on the ground that the action instituted by the
deceased Atilano Montelibano is untenable, in accordance with the
provisions of section 439 of the Code of Civil Procedure, and that the
question raised by the said party already constitutes res judicata inasmuch as it had been discussed and finally decided in civil case No. 1761.

We agree with these conclusions of law reached by the trial court. The
action, or rather, the grounds for the complaint should have been
incidentally raised in the aforesaid original case. This is the only
exclusive remedy granted by the aforecited section 439. Any alleged
right of Atilano Montelibano to indemnity for damages resulting from
the erroneous and unjustified issuance of the writ of attachment
obtained by the then plaintiff in civil case No. 1761 had already been
passed upon directly in the said case, and the judgment rendered
therein constitutes a bar to the institution of a subsequent action
based on the same grounds.

Wherefore, not finding any error1
in the judgment appealed from, it is hereby affirmed in toto, with the
costs against the appellant. So ordered.

Avanceña, C. J., Malcolm, Villa-Real, and Hull, JJ., concur.

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^[1] G. R. No. 15543, Montelibano vs. Montelibano, promulgated December 2, 1921, not reported.