JOSE H. GUEVARA, PETITIONER AND APPELLANT, VS. ANANIAS LAICO, PROVINCIAL SHERIFF OF LAGUNA, CARLOS YOUNG, NEWLAND BALDWIN AND ADELE C. BALDWIN, UNDER THE FIRM NAME OF THE TUNASA…

In civil case No. 794 of the justice of the
peace court of the municipality of San Pedro, Province of Laguna,
wherein the herein respondents Carlos Young, Newland Baldwin, and Adele
C. Baldwin, as sublessors, doing business under the firm name of The
Tunasan Estates, were plaintiffs, and the herein petitioner Jose H.
Guevara, as sublessee, was defendant, judgment was rendered, the
dispositive part of which reads as follows:

“In view of the foregoing, judgment iss
hereby rendered in favor of the plaintiffs and against th. defendant,
condemning the defendant to vacate lot No. 298-A of The Tunasan
Estates; to pay the sum of P61.38 as rents due on the premises with
legal interest from the date of the filing of this complaint; the sum
of P30.69 equivalent to 50 per cent of the rent due and unpaid as
penalty for non-payment and costs of this action.”

As the above-named defendant had not appealed from said judgment, it
became final and executory. On January 17, 1935, upon petition of said
plaintiffs, a writ of execution (Exhibit A), addressed to the herein
respondent provincial sheriff of Laguna, was issued, ordering him,
among other things, as follows:

“Wherefore, you are hereby commanded to cause the
defendant immediately to vacate said property and to restore possession
thereof to the plaintiffs. You are likewise commanded to collect from
him the rents, damages and costs, in the above-stated amount, together
with your fees for the service of this execution, and upon failure of
the defendant to pay for them, you shall attach the personal property
of said defendant, except such as is exempt from execution, and sell
the same in the manner provided by law in such cases, until you obtain
an amount equal to that of the judgment, plus the costs of the suit,
and the corresponding interest thereon from the date of the judgment,
aside from your lawful fees on this execution, turning over the amount
so collected by you to the plaintiffs in this case, excluding your
lawful fees on the execution.”

On January 18, 1935, said provincial sheriff of Laguna required the
therein defendant and herein petitioner Jose H. Guevara to remove his
house from the residential lot No. 298-A of The Tunasan Estates,
situated in the municipality of San Pedro, Province of Laguna, giving
him until January 24, 1935, to do so, and warning him that, should he
fail to comply therewith, said sheriff would be compelled to do so
himself (Exhibit B).

On January 22, 1935, the attorney for the petitioner wrote to the
respondent sheriff asking him what steps he proposed to take in
compliance with said writ of execution, Exhibit C.

On the 23d of said month and year, said sheriff answered the
attorney for the petitioner saying that he would follow the practice
usually observed in the service of writs of execution of the same
nature and that he would eject the defendant and execution debtor Jose
H. Guevara from the residential lot No. 298-A of The Tunasan Estates,
described in the writ of execution in question, remove the latter’s
house therefrom and collect the various amounts and fees mentioned in
said writ of execution (Exhibit D).

On January 26, 1935, the attorney for the petitioner again wrote to
the respondent sheriff telling him that in view of the vagueness of the
terms of the writ of execution as to the manner of compliance
therewith, he should consult the competent court in regard thereto.
(Exhibit E.)

On January 31, 1935, the respondent sheriff answered said attorney
telling him, among other things, the following: “Inasmuch as the size
and construction of the defendant’s house are such that it is
impossible to remove it from the lot without tearing it down, the house
not being portable except certain parts thereof, consequently, said
house will necessarily have to be demolished.” (Exhibit F.)

In view of the foregoing answer, the herein petitioner Jose H.
Guevara, on February 7, 1935, filed in the Court of First Instance of
Laguna, the petition for a writ of preliminary injunction, now under
consideration, against Ananias Laico, provincial sheriff of Laguna,
Carlos Young, Newland Baldwin and Adele C. Baldwin, doing business
under the firm name of The Tunasan Estates. Said petition was docketed
as civil case No. 6613 of said court. It prayed for the issuance of a
writ of preliminary injunction, to become final and permanent after the
corresponding proceedings and hearing, ordering the respondent sheriff
to leave the petitioner in the peaceful possession and enjoyment of his
rights of ownership of said house belonging to him, with the costs to
the respondents, alleging that the demolition of the house was neither
ordered in the writ of execution nor authorized by law.

On said date, February 7, 1935, the Court of First Instance of
Laguna, then presided over by the Honorable Fernando Jugo, granted the
petition and ordered the issuance of the corresponding writ of
preliminary injunction, after filing a bond of P100.

In answer to the petition, the respondent sheriff Ananias Laico, in
his pleading of February 18, 1935, denied each and every one of the
facts stated therein and, as a special defense, alleged, among other
things, as follows:

“(c) The only interest of the respondent in the
subject matter of the petitioner’s application consists in his earnest
desire to show that, in attempting to comply with said writ of
execution the delivery of possession of the land described therein as
lot No. 298-A of The Tunasan Estates, he has acted under the sincere
and honest conviction on his part that said writ of execution included
the removal from the land not only of the person of the defendant but
also of his house of mixed materials constructed thereon, which is also
the same interpretation given thereof by the plaintiffs and execution
creditors in said civil case No. 794, who, from January 17, 1935,
requested the respondent sheriff to turn over to them the possession of
said land in accordance with said interpretation, that is, first
removing therefrom not only the person of the defendant but also his
house of mixed materials constructed thereon, as an indispensable
prerequisite to restitution of possession of the land to the
plaintiffs.”

Answering, in turn, said petition, the respondents Carlos Young,
Newland Baldwin and Adele C. Baldwin, in their pleading of March 20,
1935, denied each and every one of the facts alleged therein, and set
up a special defense with a counterclaim praying that the petitioner be
ordered to pay them the sum of P1,000 as damages, plus the sum of
P61.38 as annual rent from January 1, 1935, until the petitioner turns
over the possession of the property, in accordance with the judgment
rendered in civil case No. 794 of the justice of the peace court of San
Pedro, Laguna, with the costs.

The petitioner Jose H. Guevara, replying to said counterclaim, denied each and every one of the facts alleged therein.

After due trial and hearing of the evidence presented by the
respective parties, the Court of First Instance of Laguna, then
presided over by the Honorable Sptero Rodas, rendered judgment on June
19, 1935, the dispositive part of which reads as follows:

“Consequently, the court orders the dissolution of
the writ of preliminary injunction issued in this case, holding that
the petitioner is not entitled to the relief prayed for in his
complaint and ordering him to pay to the defendants ‘The Tunasan
Estates’ the sum of P5.12 monthly from the date of his refusal to
vacate the lot described in the complaint until full restitution of
possession thereof is made to said defendants, with the costs.”

The petitioner interposed the present appeal from said judgment,
assigning the following alleged errors as committed by the court a quo,
to wit: .

“1. In not holding that by virtue of the writ of
ejectment under the terms prescribed in section 85 of the Code of Civil
Procedure, the sheriff, process server or any other person, has neither
right nor authority to demolish or destroy the house of the appellant,
as execution debtor in the writ of ejectment.

“2. In not
declaring the writ of preliminary injunction, previously issued,
permanent and final, in dismissing the complaint with, costs, and in
ordering the petitioner to pay P5.12 monthly, as compensation for the
occupation of the premises.

“3. In denying the new trial
applied for and in not providing for the opinion of experts for the
assessment and compensation of the value of the house in question.”

The first question to be decided in this appeal is whether or not
said court erred “in not holding that by virtue of the writ of
ejectment under the terms prescribed in section 85 of the Code of Civil
Procedure, the sheriff, process server or any other person, has neither
right nor authority to demolish or destroy the house of the appellant,
as execution debtor in the writ of ejectment.”

While the present case was pending decision in this court,
Commonwealth Act No. 89 was enacted on October 26, 1936, section 1 of
which reads as follows:

“Section 1. The provincial sheriff, in executing
the decision of a competent court in ejectment cases, shall not
destroy, demolish, or remove the improvements constructed or planted by
the defendant or his agent or servant on the premises, unless expressly
authorized by the court. The court may authorize the provincial sheriff
to do so, upon petition of the plaintiff or his attorney, after due
hearing, and upon the failure of the defendant to remove the aforesaid
improvements within a reasonable time after being so ordered by the
court.”

The above-quoted legal provision prohibits the sheriff, executing a
decision in an ejectment case, from destroying-, demolishing or
removing the improvements constructed by the defendant and execution
debtor or his agents, unless, upon petition of the plaintiff or his
attorney and after due’ hearing, it is so authorized by the court, upon
failure of the defendant and execution debtor to do so within a
reasonble time, after having been so ordered by said court.

In view of this new law, which is procedural in nature and, therefore, with a retroactive effect (Enrile vs. Court First Instance of Bulacan, 36 Phil., 574; Hosana vs.
Diomano and Diomano, 56 Phil., 741), the respondent sheriff cannot
carry out t.he demolition of the petitioner’s house constructed by him
on the lot in question.

With respect to the counterclaim set up by the respondents Carlos
Young, Newland Baldwin and Adele C. Baldwin, section 95 of the Code of
Civil Procedure makes no distinction between a simple complaint and a
-complaint praying for the issuance of a writ of preliminary
injunction, in authorizing the defendant to set forth by answer all the
facts constituting his defense and the counterclaims he may have,
whatever their nature, provided they are in favor of all the
substantial defendants and against all the substantial plaintiffs in
the action, as required by section 96 of said Code. The counterclaim
under consideration herein is in favor of the substantial defendants
and execution creditors Carlos Young, Newland Baldwin and Adele C.
Baldwin, the other defendant Ananias Laico, as provincial sheriff of
Laguna, being a mere process server, and against the substantial
plaintiff, the herein petitioner, Jose H. Guevara. A preliminary
injunction is an ancillary remedy and it may be issued by a court only
in an action pending before it or before an inferior tribunal (section
163, Act No. 190). Therefore, the judgment rendered in favor of said
respondents, upon their counterclaim, is in accordance with law and the
result of the evidence.

Wherefore, the appealed judgment is reversed in so far as it orders
the dissolution of the writ of preliminary injunction issued, which is
made permanent, and it is affirmed in all other respects, without
special pronouncement as to costs. So ordered.

Avancena, C. J., Abad Santos, Imperial, Diaz, Laurel, and Concepcion, JJ., concur.