ISMAEL HUBAHIB, PLAINTIFF AND APPELLANT, VS. INSULAR DRUG CO., INC., ET AL., DEFENDANTS AND APPELLEES.

This case was commenced in Branch II of
the Court of First Instance of Cebu by Ismael Hubahib, for the
annulment of the writ of execution issued against him as surety, for
failure of the principal obligor, Silvestre Mabutas, to satisfy the
amount of the judgment in civil case No. 8246, entitled “Insular Drug
Co., Inc., plaintiff, vs. Silvestre Mabutas, defendant/’
which was tried and decided in Branch III of said court and wherein
Mabutas was ordered to pay to the Insular Drug Co., Inc., the sum of
P1,192.01 with interest thereon at 12 per cent per annum from January,
1930, until fully paid, plus a sum equivalent to 6 per cent thereof as
attorney’s fees, with costs.

The lower court decided the case adversely to the plaintiff who
appealed from said judgment alleging that the court committed the
following errors:

“I. In not declaring null and void the order issued
on or about May 13, 1933, in civil case No. 8246 of the Court of First
Instance of Cebu (Exhibit G), directing the issuance of a writ of
execution against Pedro Villasis and Ismael Hubahib (the appellant
herein), as sureties for the dissolution of a preliminary attachment in
said case, which order was issued ex parte, upon a motion of
which said sureties had not been notified, and behind their back, and
without having determined the liability of the sureties or the value of
the property the attachment of which had been dissolved by means of the
bond filed by them.

“II. In not declaring null and void the
writ of execution issued by the clerk of the Court of First Instance of
Cebu by virtue of the order stated in the first assignment of error,
dated May 13, 1933, in said civil case No. 8246, as well as the
actuations of the defendant sheriff in proceeding to comply with said
writ.

“III. In dismissing the complaint in question and in not ordering the defendant Insular Drug Co., Inc., to pay the costs,

“IV. In denying the motion for a new trial filed by the appellant.”

The pertinent facts that should be taken into consideration in
order to decide the questions raised by the appellant by means of the
four alleged errors assigned in his brief, may be summarized as follows:

Upon the commencement of case No. 8246 for the recovery of a
certain sum of money, the plaintiff therein, Insular Drug Co., Inc.,
asked for and obtained the issuance of a writ of preliminary attachment
against the defendant Silvestre Mabutas by Branch III of the court,
which was the one that tried the case. Before the sheriff of Cebu could
execute the writ in question, Mabutas filed a bond in accordance with
the provisions of section 428 of Act No. 190, which permit the
dissolution of the writ, under the circumstances, upon the giving of
sufficient security approved by the court. This took place on May 16,
1930. The bond in question, which was in the sum of P2,500, was
subscribed by the herein appellant, Emilio A. Bastinen and Silvestre
Mabutas, with the appellant and Bastinen as sureties, and Mabutas as
the principal obligor, the three binding themselves jointly and
severally to answer, in its case, for the sum in question. As the
surety Bastinen had withdrawn from the bond, another had to be executed
in November, 1930, by Mabutas, the same appellant Ismael Hubahib and
Pedro Villasis, the latter as a new surety in lieu of Bastinen. As in
the case of the first bond, the three bound themselves jointly and
severally to answer, in its case, for the payment of the amount of the
new bond which was also P2,500. Sometime later, that is on December 1,
1932, judgment was rendered against Mabutas, the court ordering him
therein to pay to the Insular Drug Co., Inc., the sum of P1,192.01 with
interest thereon at 12 per cent per annum, plus a sum equivalent to 6
per cent thereof as attorney’s fees, and costs. When the judgment
became final the lower court, upon an ex parte petition,
issued the writ of execution of April 17, 1933, but as Mabutas was
insolvent, the judgment could not be satisfied. About one month later,
that is, on May 13, 1933, upon an ex parte petition of the
Insular Drug Co., Inc., the lower court, through the judge of Branch
III, issued a writ of execution of the judgment on the bond of the
herein appellant and Pedro Villasis. When the appellant was informed of
said writ of execution, he filed a motion on December 29, 1933, praying
that his bond be declared null and void on the ground that no
attachment had in fact been levied on the properties of Mabutas; that
no inventory had been made of the attached properties of said defendant
and he, as well as his cosurety, had never been required to deliver to
the court the defendant’s attached properties; and that the net amount
for which they were liable as sureties had not yet been determined.

The lower court, also through the judge of its Branch III, deciding
said motion of the appellant, denied it in its order of September 25,
1934, declaring it to be without merit and unjustified. The appellant,
who could have appealed from said order, failed to do so then and
thereafter. The fact that Ismael Hubahib failed to appeal from the
order of the lower court issued in said case No. 8246, denying his
motion of December 29, 1933, which was appealable by nature, now bars
him from the right to raise for the second time the same question
whether or not the judgment rendered against Mabutas may be executed on
the bond filed by him and Pedro Villasis in favor of said defendant.
Said order having become final, it necessarily has the authority and
effect of res judicata and it is of no avail for the
appellant to allege now that said order was issued behind his back
because, if it had such defect, the defect was cured when said
appellant appeared before the judge of said Branch III by his motion of
December 29, 1933, to be heard and to ask that order under
consideration be reconsidered and set aside. It has already been stated
that although the appellant could have appealed from said order during
the period allowed him by law for said purpose, he failed to do so.
Said failure on his part naturally gave rise to the inference that he
abided by and respected it.

While it is true that before the order in question was issued by the
judge of Branch III of the lower court, the appellant had instituted
the action referred to in this case in Branch II of said court, for the
annulment of the order which gave rise thereto, or that of May 13,
1933, obtained ex parte by the Insular Drug Co., Inc., by
virtue of which the judge presiding over Branch III issued said writ of
execution against Mabutas on the bond filed by the herein appellant and
Pedro Villasis, and obtained therein a writ of preliminary injunction
against the defendant sheriff restraining him from complying with the
writ of execution in question, the institution of said action was not
only improper but also absolutely unjustified, on the ground that the
appellant had the remedy of applying to the same Branch III of the
lower court, which issued the orders in question, for reconsideration
thereof, in accordance with the provisions of section 113 of Act No.
190, or of appealing from said orders or from that denying his motion
in case such order has been issued. The various branches of a Court of
First Instance of a province or city, having as they have the same or
equal authority and exercising as they do concurrent and coordinate
jurisdiction, should not, cannot, and are not permitted to interfere
with their respective cases, much less with their orders of judgments,
by means of injunction (Cabigao and Izquierdol’s. Del Rosafio and Lim
[1922], 44 Phil., 182, and the cases cited therein; Nunez vs. Low [1911], 19 Phil., 244; Orais vs.
Escario [1909], 14 Phil., 208, 212). After an appealable order or
judgment has become final, it can no longer be altered and it is of
public interest that it be so because otherwise there would be no way
of knowing when the litigants can exercise their rights recognized by
the orders and judgments rendered in their favor nor when the action in
which they are involved could be considered terminated.

Having arrived at the conclusion that the orders, the annulment of
which is asked hy the appellant are already final and executory, and
the authority or jurisdiction of the court that issued them not }mng
questioned, it appears unnecessary to pass upon the other alleged
errors assigned by the appellant in his brief, particularly if it is
considered that the bond tiled by him is not that provided in section
440, as claimed by him, but that stated in section 428 of Act No. 190.

The judgment appealed from is affirmed, with the costs to the appellant. So ordered.

Avancena, C. J., Villa-Real, Abad Santos, Imperial, Laurel, and Concepcion, JJ., concur.

Judgment affirmed

---

March 11, 1937

DIAZ, J.:

The motion for reconsideration filed in this case by the appellant
is based upon the assumption that the lower court was without authority
or jurisdiction to order the execution of the judgment rendered in
civil case No. 8246, on the bond given by him in favor of the defendant
therein. The court undoubtedly had jurisdiction to do so because the
question raised and decided in said case—the recovery of the sum of
P1,192.01 plus interest thereon and the costs—referred to an action
which by reason of the amount involved, necessarily came within the
jurisdiction of said court (sec. 56, No. 3, Act No. 136); and by
jurisdiction is meant the power or authority of a court to hear and
determine a case, or to conduct proceedings in a particular case until
the final determination thereof, the existence of said authority never
depending upon the more or less regular or correct exercise thereof
(Herrera vs. Barretto and Joaquin, 25 Phil., 245).

No attempt has been made to show to this court, nor ca it be
inferred from the record, that the lower court did not have such
authority. The only thing alleged by the appellant in his brief, which
he now repeats in his motion for reconsideration, is that as said court
issued the writ of execution in question behind his back, it is null
and void. He contends that the validity of said writ depended upon the
authority of said court to issue it by virtue of the vious filing of a
motion to that effect by the appellee with notice to the appellant.
This argument is not new. It had already been adduced by the appellant
in his brief and was discussed in the decision, it having been stated
therein that if the court erred in favorably deciding the appellee’s
motion for the issuance of a writ of execution of the judgment against
Silvestre Mabutas on the bond filed by tha appellant, without previous
notice to the latter of the steps that were to be taken against him,
such error was cured by his appearance in the case wherein the writ or
order was issued to ask that said order be set aside. Furthermore,
having failed to appeal from said order although he could have done so
then, it is now too late to attempt to set it aside by means of another
proceeding.

It being clear to this court, for the foregoing reasons, that the
appellant’s motion for reconsideration is without merit, it is hereby
denied. So ordered.

Avancena, C. J., Villla-Real, Abad Santos, Imperial, Laurel, and Concepcion, JJ., concur.