JOSE FLORENDO, PLAINTIFF AND APPELLEE, VS. EUSTAQUIO P. FOZ, DEFENDANT AND APPELLEE. JUAN CALVO AND LUIS FOZ, SURETIES OF THE DEFENDANT EUSTAQUIO P. FOZ, APPELLANTS.

This is an appeal from a judgment of the Court of First Instance of the
Province of Ilocos Sur by the sureties on an appeal bond rendered against them
for the sum of P2,000, and from an order for the issuance of an execution
thereon.

On the 9th of July, 1910, one Jose Florendo obtained judgment against
Eustaquio P. Foz, as follows:

“For the reasons above expressed, the court decrees the specific performance
by the defendant of the contract for the purchase and sale of the lands, said
defendant to deliver to plaintiff the land described in the complaint; said
defendant paying to the plaintiff the rents which he would have received for
said lands described in the complaint from the 1st day of July, 1909, until full
compliance with this judgment; that from the P4,000 deposited in the provincial
treasury of Ilocos Sur there be paid to the Roman Catholic Apostolic Church of
Vigan the mortgage now due which the said church holds against the defendant,
together with the costs of the action; that the balance of the said P4,000 after
satisfying this decree shall be paid to the said defendant.”

An appeal was taken from that judgment and, to stay execution, a bond was
given with Juan Calvo and Luis Foz as sureties, in which the parties thereto
recognized that they were “jointly and severally obligated to said Jose Florendo
in the sum of two thousand pesos (P2,000) Philippine currency, for the payment
of which well and truly to be made” they bound themselves “jointly and
severally.” The condition of the obligation was “that the appellant was
obligated to the appellee in the sum of P2,000 Philippine currency, for the
fulfillment of the judgment appealed from, in case it should be wholly or partly
affirmed.”

The judgment appealed from was affirmed by the Supreme Court.^[1]

On the 20th of May 1912, the Court of First Instance ordered the provincial
treasurer, in whose custody the sum of P4,000 mentioned in the judgment then
was, to deliver to the clerk of the court the sum of P4,000, at the same time
authorizing and ordering said clerk to pay to the Roman Catholic Apostolic
Church of Nueva Segovia, or to its representative or attorneys, the sum of
P2,920.59, which was the amount of the mortgage held by said church against the
defendant Eustaquio P. Foz, together with interest thereon.

On the 24th of June, 1912, the sheriff of Ilocos Sur moved the court for an
order requiring the delivery to him of the balance of the P4,000, or the sum of
P1,079.41, in part satisfaction of another judgment against said Eustaquio P.
Foz obtained on the 7th of March, 1911, in the Court of First Instance of the
city of Manila. On the 28th of June, 1912, in pursuance of this motion the court
ordered its clerk to deliver to said sheriff for the purpose specified the said
sum of P1,079.41, the balance of the said P4,000. This payment was made to the
sheriff on the 20th of July, 1912.

On the 22d of July, 1912, the plaintiff in this case moved the court for the
issuance of an execution for the recovery of the other sums found by the
judgment heretofore referred to as due and owing from the defendant to the
plaintiff. In pursuance of this motion the court on the 31st of August, 1912,
issued an execution to the sheriff of the city of Manila directing him to seize
goods and chattels of Eustaquio P. Foz for the recovery of the sum of P2,294.64.
On the 14th of October following, the sheriff of Manila returned the execution
nulla bona, stating in his return that Eustaquio P. Foz had no goods or
chattels subject to levy and sale. On the 11th of November following, the
attorney for the plaintiff moved the court for the issuance of an execution
against the property of the sureties, Juan Calvo and Luis Foz, to the extent of
P2,000. The said sureties appeared to combat said motion, asked that the
execution of the judgment be sus pended and that the court declare that the
payment of said sum of P1,079.41 to the sheriff of Ilocos Sur for the purposes
for which it was paid was illegal and prejudicial to the interests of the
sureties. They also prayed that all the goods and chattels of Eustaquio P. Foz
be levied upon and sold for the satisfaction of the execution before their
property was made subject thereto.

The learned trial court denied these motions and ordered that execution issue
against the sureties Juan Calvo and Luis Foz for the satisfaction of the
judgment referred to, not to exceed the sum of P2,000, the penalty of the
undertaking. This appeal is from that order.

The appellants assign two errors. First, that “the Court of First Instance
erred in not declaring invalid and of no force or effect the payment of the sum
of P1,079.41 to the sheriff of Ilocos Sur in part satisfaction of the execution
issued by the clerk of the Court of First Instance of Manila on the 30th day of
April, 1912.” Second, that “the court erred in not declaring null and void the
undertaking executed by Juan Calvo and Luis Foz jointly and severally with
Eustaquio P. Foz upon the ground that said Foz was insolvent at the time of and
since the execution of said undertaking.”

Speaking of the second alleged error first, we might say that we have been
cited to no provision of law, and we know of none, which renders an appeal bond
void because the appellant happens to be insolvent at the time the bond is
executed. The precise purpose of a bond on appeal is to protect the appellee
from the insolvency of the appellant and to assure to him the effective
execution of the judgment on the termination of the litigation.

In regard to the first error assigned, the appellants argue that they bound
themselves to the fulfillment of the judgment ip. case it should be affirmed and
that said judgment contained a clause that the balance of the P4,000, after
paying the mortgage held by the Roman Catholic Apostolic Church, should be
turned over to the appellant in the action in which said judgment was obtained;
and that it was a breach of the condition upon which the bond was given to
permit that sum to be turned over for the payment of another and different
judgment. They also argue that said sum having been paid to a stranger instead
of to the defendant and appellant, the execution in all its parts of the
judgment appealed from was rendered impossible, the defendant was deprived of
certain resources which he otherwise would have had, and the plaintiff and
appellee in this case would have collected upon his execution said sum of
P1,079.41, thus reducing to that extent the sum which the sureties must pay.

Perhaps the appellants have some grievance at the manner in which the
P1,079.41 was handled by the court when we look at the requirements of the
judgment for the execution of which they stood guarantors. It is a grievance,
however, which, in our judgment, cannot be remedied in this proceeding or on
this appeal, even if it be conceded that it have a remedy at all. The sureties
bound themselves to the fulfillment of the judgment, not in those particulars in
which it was favorable to the appellants, but to those in which it was favorable
to the appellee. The appellee, if his judgment should be affirmed, was entitled
to receive a certain sum of money, or a sum which, by a subsequent procedure,
was made certain. To assure him the payment of this sum, the obligation was
incurred by the sureties on the bond. They may have had, generally speaking,
strong reasons to believe that in case they were obliged to pay the judgment
they would receive the benefit of the sum of P1,079.41, which the court had
ordered to be turned over to the defendant after the payment of the church
mortgage. This, however, was merely an expectation, a hope rather than a right.
The judgment upon which that sum was paid might have taken preference over the
judgment for the payment of which they stood surety. In that event there would
have been grave doubt of the efficacy of the order, if contested, that said sum
of P1,079.41 be paid upon said judgment, as against the rights of the
judgment-creditor upon whose judgment the sum was actually paid. To say the
least, the sureties took the chance of having that sum withdrawn from the
defendant’s resources and paid upon another obligation, or of having it paid to
Foz himself for his personal use. As a legal proposition the sureties agreed to
see that the judgment appealed from should be paid if affirmed, and that is all
that the appellee is asking of them.

The judgment appealed from is hereby affirmed, with costs against the
appellants.

Arellano, C. J., Carson, Trent, and Araullo, JJ.,
concur.

---

^[1] 20 Phil. Rep., 388.