ORIENTAL COMMERCIAL CO., INC., PETITIONER, VS. QUNTICO ABETO AND ALEJO MABANAG, RESPONDENTS.

In civil case No. 35897 of the Court of First
Instance of Manila, the herein petitioner sought to recover from
Gregorio Bugayong, Vicente Rosario and the herein respondent Alejo
Mabanag a certain sum of money, interest, penalty and costs. After
trial, judgment was rendered ordering Bugayong alone to pay the sum of
P5,742.73 with legal interest thereon from August 15, 1929, plus the
costs, and absolving Mabanag and Rosario from the complaint. Appeal was
taken therefrom and the case was docketed in this court as case No.
37624. After the same had been submitted for decision, judgment was
rendered as follows:^[1]

“On the whole case we believe that P1,000 should be awarded appellant
for attorney’s fees and that judgment should be entered against all the
defendants and appellees in the sum of P5,742.73, with legal interest
from the 15th of August, 1929, until paid, together with the sum of
P1,000 as attorney’s fees, and the costs in both instances.

“As thus modified, the judgment of the Court of First Instance of Manila is affirmed. So ordered.”

Said judgment having become final, the clerk of court issued the following decree:

“By virtue thereof it is hereby adjudged and
decreed that the judgment of the Court of First Instance of Manila,
dated the 18th day of February, nineteen hundred and thirty-two, and
from which the above-entitled appeal was taken, be, and the same is
hereby, affirmed with the modification that judgment is entered against
all the defendants and appellees in the sum of P5,742.73, with legal
interest from the 15th of August, 1929, until paid, together with the
sum of P1,000 as attorney’s fees, and the costs in both instances.

“It is further ordered that the plaintiff-appellant recover from the defendants-appellees the sum of P143, as costs.”

After the case had been remanded to the court of origin, the
petitioner applied for and obtained a writ of execution of the
judgment. By virtue of said writ, real and personal properties
belonging to Rosario and the respondent Mabanag were levied upon. The
latter executed in favor of the petitioner a promissory note for the
sum of P1,000 as partial payment of the judgment and succeeded in
having the execution suspended in that state. Inasmuch as the judgment
was not executed in full in spite of the time that elapsed, the
petitioner obtained from the clerk of court an alias writ of execution
against the respondent Mabanag, and the provincial sheriff of Rizal
levied upon two pieces of real property belonging to him, fixing their
sale at public auction for August 10, 1934. The said respondent then
filed a motion praying the court to enjoin the sheriff from proceeding
with the sale, alleging that, according to the terms of the judgment,
he was a mere joint obligor with Rosario, for which reason he was not
liable to satisfy in full the unpaid balance of the judgment which,
according to the last writ of execution, amounted to P1,750.16. Lastly,
he claimed that, being a mere surety, execution did not lie against him
until after the property of the principal debtor Gregorio Bugayong is
exhausted. The court sustained said motion and on August 4, 1934, it
ordered the sheriff to abstain from proceeding with the advertised
sale, and directed that no writ of execution be issued against the
respondent Mabanag until after the property of Bugayong is exhausted or
Bugayong should happen to be insolvent.

The petitioner filed this petition for a writ of certiorari to have said order of August 4, 1934, set aside.

The only point to be decided by this court is whether or not the
trial court, in issuing the order in question, acted without or in
excess of its jurisdiction or abused its sound discretion. In deciding
such question, we should first determine the rights and obligations
created by the final judgment rendered by this court. It is beyond
question that said judgment is binding upon the parties to the case and
that it superseded the action brought by the petitioner.

“A claim or demand, being put in suit and passing
to final judgment, is merged or swallowed up in the judgment, loses its
vitality, and cannot thereafter be used either as a cause of action or
as a set-off, unless the statute otherwise provides; and this rule
applies to a final decree in a court of equity. Moreover, as a general
rule all the peculiar qualities of the claim are merged in the
judgment, which then stands on the same footing as all other judgments.
And these rules apply to all species of demands, including contracts,
bonds, and promissory notes, but not, according to the weight of
authority, a judgment on which a new judgment is recovered.” (34 C. J.,
pp. 752-754.)

It being settled that the final judgment determines and is the
source of the rights and obligations of the parties to that case, let
us find out what obligations are derived therefrom in favor of the
petitioner and against the respondent Mabanag and his co-defendants
therein. In the judgment of this court, notice of which was served by
the clerk on the trial court and the parties, it is simply stated that
judgment be entered against all the defendants and appellees in the sum
of P5,742.73, with legal interest from the 15th of August, 1929, until
paid, together with the sum of ?l,000 as attorney’s fees, and costs,
but it does not specify the kind of obligation imposed upon the
defendants in connection with the payment or the manner in which said
payment should be made by them. In other words, the judgment failed to
state whether or not the defendants should pay said sums jointly and
severally.

As to obligations, the Civil Code provides as follows:

“ART. 1137. The concurrence of two or more
creditors, or of two or more debtors, in a single obligation, does not
imply that each one of the former has a right to ask, nor that each one
of the latter is bound to comply in full with the things which are the
objects of the same. This shall only take place when the obligation
determines it expressly, being constituted as a joint and several
obligation.

“ART. 1138. If from the context of the
obligation referred to in the preceding article, any other thing does
not appear, the credit or the debt shall be presumed as divided in as
many equal parts as there are creditors or debtors, and shall be
considered as credits or debts, each one different from the other.”

In the case of De Leon vs.
Nepomuceno and De Jesus (37 Phil., 180), this court, in determining the
manner in which the costs should be paid in conformity with the
language of the judgment rendered in an election case, said:

“Examining the language of the judgment for costs, which is set out in
the foregoing statement of facts, it is manifest that it is merely a
joint judgment against the protestado y tercerista, and does
not permit of construction or interpretation as a ‘joint and several’
judgment. No argument is necessary. It is sufficient to cite here
articles 1137 and 1138 of the Civil Code as to the rule in this
jurisdiction.

” ‘ART. 1137. The concurrence of two or more
creditors, or of two or more debtors, in a single obligation, does not
imply that each one of the former has a right to ask, nor that each one
of the latter is bound to comply in full with the things which are the
objects of the same. This shall only take place when the obligation
determines it expressly, being constituted as a joint and several
obligation.

” ‘ART. 1138. If from the context of the
obligation referred to in the preceding article, any other thing does
not appear, the credit or the debt shall be presumed as divided in as
many equal parts as there are creditors or debtors, and shall be
considered as credits or debts, each one different from the other.’

” ‘A joint obligation under the Law of Louisiana binds the parties
thereto only for their proportion of the debt, whilst a solidary
obligation, on the contrary, binds each of the obligors for the whole
debt.’ (Groves vs. Sentell; 14 Sup. Ct., 898, 901; 153 U. S., 465; 38 L. ed., 785.)”

And in the case of Sharruf vs. Tayabas Land Co. and
Ginainati (37 Phil., 655), wherein the case of De Leon was again
favorably cited, the same rule was reiterated in the following terms:

“We agree with the appellant that this promissory
note evidences a joint and not a joint and several obligation, but it
appearing that the trial judge correctly rendered judgment holding the
defendants ‘jointly’ liable, there is no necessity for any modification
of the terms of the judgment in that regard. Our decision in the case
of De Leon vs. Nepomuceno and De Jesus (p. 180, ante)
should make it quite clear that in this jurisdiction at least, the word
‘jointly’ when used by itself in a judgment rendered in English is
equivalent to the word mancomunadamente, and that it is necessary to use the words ‘joint and several’ in order to convey the idea expressed in the Spanish term solidariamente (in solidum)
; and further, that a contract, or a judgment based thereon, which
fails to set forth that a particular obligation is ‘joint and several’
must be taken to have in contemplation a ‘joint’ (mancomunada), and not a ‘joint and several’ (solidary) obligation.”

Therefore, it is already a well established doctrine in this
jurisdiction that, when it is not provided in a judgment that the
defendants are liable to pay jointly and severally a certain sum of
money, none of them may be compelled to satisfy in full said judgment.
And applying said doctrine to the case under consideration, it follows
that the respondent Mabanag is not in fact liable to satisfy in full
the amount of the judgment rendered against him and the other two
co-defendants.

It is of no consequence that, under the written contract of
suretyship executed by the parties, the obligation contracted by the
sureties was joint and several in character. The final judgment, which
superseded the action brought for the enforcement of said contract,
declared the obligation to be merely joint, and the same cannot be
executed otherwise.

In the court’s order it is decreed that no writ of execution be
issued against the respondent Mabanag until after the property of the
co-defendant Bugayong is exhausted. This court is of the opinion that
there was excess of jurisdiction upon this point. In the final judgment
nothing can be. inferred giving any of the defendants therein the
benefit of order. The final judgment rendered against them does not
consider any of them as surety.

Wherefore, it being understood that the respondent Mabanag is not
entitled to the benefit of exhaustion, the petition is denied, without
special pronouncement as to costs. So ordered.

Malcolm, Villa-Real, Butte, and Goddard, JJ., concur.

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^[1] 58 Phil., 958.