THE BACHRACH MOTOR CO., INC., PETITIONER, VS. MARIANO A. ALBERT, JUDGE OF BRANCH AB OF THE COURT OF FIRST INSTANCE OF MANILA, ISABEL ABLAZA, AND PEDRO VALDEZ LIONGSON, RESPONDENTS.

The facts which have induced the
presentation of this petition for a writ of certiorari addressed to the
Court of First Instance of Manila not being in dispute, the legal
question arising out of the admitted facts is only to be decided,
concerns the interpretation which should be given to the last sentence
of section 267 found in the portion of the Code of Civil Procedure
relating to manual delivery of personal property, reading: “If a return
of the property be not so required within five days after the taking
service of notice to the defendant, it must be delivered to the
plaintiff, except as provided in section two hundred seventy.”

Isabel Ablaza Pedro Valdez Liongson executed promissory notes’,
chattel mortgages on autocalesas, in favor of the Bachrach Motor
Company, Inc. An action for the foreclosure of the chattel mortgages
was begun. In aid of the-foreclosure proceeding, the plaintiff in that
case filed an action for the delivery of personal property presented a
bond in order to obtain possession of the autocalesas. The sheriff of
Manila, after taking over the control of the chattels, gave notice to
the defendants to file a bond for the return of the property if they
desired to retain it. Within the five-day period the defendants failed
to file any bond. Upon such failure the sheriff of Manila delivered the
chattels to the plaintiff. Five days later the defendants filed an
urgent motion in which they asked the court to approve a bond in the
sum of ^6,000 for the return to them of the replevied chattels. After
hearing the trial judge granted the petition on the theory that he had
general jurisdiction, that there was nothing in the law which
prohibited him to take action.

Section 267 of our Code of Civil Procedure was derived from section
514 of the Code of Civil Procedure of California. In turn, the
California codal provision was based on the Practice Act of New York,
except that instead of using the word “shall” before the words “be
delivered”, the word “must” was used. The emphatic, taxative, mandatory
nature of the language is accordingly evident. The New York Court has
held that, where seller, for default in payments on a machine sold on
an installment contract secured by a chattel mortgage, replevied the
machine, the buyer, not having given the statutory bond reclaimed the
chattel, nor having deemed the return thereof, has, as a matter of law,
conceded seller’s right to possession. (O. B. Brush Corp. vs.
Weiner Bookbinding Co. [1922], 198 N. Y. S., 566.) The California Court
has held that the right of a defendant in a claim delivery action to
require the return to him of property taken from him by the sheriff is
conditioned upon his giving to the sheriff an undertaking as provided
by section 514, Code of Civil Procedure. (Bailey vs. Baker [1915], 153 Pac, 242.) A Pennsylvania Court has held that the bond must be filed within the time prescribed. (Lunneman vs. Lunneman, 11 Pa. Dist, 759.)

Aside from the intendment to be deduced from the language used by
the Legislature aside from the authorities, it is readily apparent that
for one to avail himself of the privilege of retaining the possession
of property, compliance with the conditions precedent imposed is
necessary, failure to comply therewith entitles plaintiff to
possession. The initial steps in obtaining redelivery must be taken
within the time limited by the statute. In this connection it should be
recalled that the autocalesas had passed out of the possession of the
defendants out of the control of the court into the possession of the
plaintiff because of the failure of the defendants to file the
necessary bond in time.

The parties have discussed other phases of the case, particularly
the effect of Act No. 4122 which introduced by way of amendment article
1454-A into the Civil Code. We think, however, that any pronouncements
on these questions would be beyond the issue. The controlling factor is
that the trial judge acted in excess of jurisdiction in attempting to
approve a bond for the redelivery of the chattels presented after the
statutory period had expired.

Petition granted, the costs to be paid by the respondents Isabel Ablaza Pedro Valdez Liongson.

Villa-Real, Imperial, Butte, Goddard, JJ., concur.