Professional Documents
Culture Documents
Rule 39 Partial Arranged
Rule 39 Partial Arranged
The couple doted upon Shirley who called them "Mama" and
"Papa". She calls her natural parents "Mommy" and "Daddy."
When Shirley reached the age of four (4) years in 1979, she
was enrolled at the Maryknoll College in Quezon City.
Shirley looked forward to this trip and was excited about it.
However, when the petitioners asked for the respondents'
written consent to the child's application for a U.S. visa, the
respondents refused to give it, to the petitioners' surprise and
chagrin.
Rule 39
ISSUE:
WON procedural rules, more particularly the duty of lower
courts to enforce a final decision of appellate courts in child custody
cases, should prevail over and above the desire and preference of the
child
HELD: No.
Rule 39
the compromise agreement. On the same date, Judge Rodas issued an
order, to wit:
As prayed for in the motion of the attorneys for the plaintiff in
these two cases, the court thereby orders that a statement of
their lien be entered upon the record of said cases thereby
subjecting any judgment or decree in favor of their client to the
payment of said lien, consisting in one-half of whatever amount
or property she may obtain from the defendants or any of them
by reason of the complaint filed in the above-entitled case.
Then, the parties attempted to make a partition of the properties but due
to varied difficulties encountered in physically segregating the share
pertaining to the law firm, the latter offered to sell its interest to
Mendoza.
Ponente: Escolin,J:
Nature: Petition for Review of CAs decision which reduced the attorney's fees
adjudicated by the CFI in favor of petitioners
Mendoza, though willing to buy, did not have sufficient funds at the time.
Hence, pending actual division of the properties involved, the parties
agreed that Mendoza would manage and administer the same with the
obligation of giving to petitioners, after proper accounting, their one-half
share in the income at the end of every crop year.
Starting 1959, however, Mendoza stopped giving to the law firm its
share in the produce. Petitioners then filed a complaint against Narcisa
Mendoza 4 in the Court of First Instance of Nueva Ecija for partition of
the properties in question, with accounting of all the fruits and/or
income thereof, and for delivery of their share, plus interests.
In her answer, Mendoza alleged that 1) while she had agreed to pay a
contingent fee equivalent to one-half of whatever amounts or properties
she might recover in her cases, said litigations were in fact terminated
through a compromise agreement; 1) that petitioners did not utilize their
legal knowledge and professional skill to win these actions
FACTS:
Rule 39
CFI
In favor of petitioners declaring the plaintiffs to be the absolute owner of one-half and the partition of the disputed properties and for defednants
to pay attorneys fees;
modified the above decision by reducing the awards that (1) plaintiffs-appellees are declared to be the absolute owners of () of the parcels of
land described in the dispositive portion of said appealed judgment; (2) defendant-appellant is hereby ordered to pay to plaintiffs-appellees the
amount of P550.00 a year, as their share in the harvest of said properties, covering the year 1959 until their one-fourth interest in each of said
parcels of land shall have been actually delivered to them; and (3) the award of P2,000.00 as attorney's fees is hereby deleted. The appealed
judgment is hereby affirmed in all other respects. No pronouncement as to costs.
Petitioner moved for its Motion for Reconsiderartion DENIED Hence thgis petiion.
CA
Rule 39
Title:
G.R. No. 77353
July 30, 1987
ASSOCIATED BANK, petitioner, vs. HON. ARSENIO M.
GONONG, in his capacity as Presiding Judge of the Regional Trial
Court of Manila, Branch VIII; ROLE, INC. and ROMEO R.
ECHAUZ, respondents.
Facts:
Issue:
WON trial court loses its jurisdiction to decide on a motion
for execution of judgment pending appeal when a notice of appeal
had already been perfected by respondent?
Held:
No, as long as the 15 day reglamentary period had not yet
elapsed the trial court still has jurisdiction.
Ratio:
As long as any of the parties may still file his, her, or its
appeal, the court does not lose jurisdiction over the case.
The plaintiff or plaintiffs may not deprive the defendants or
co-plaintiffs and neither may the defendant or defendants deprive
the plaintiff or co-defendants of the right to file a motion for
reconsideration or to move for a new trial or an execution pending
appeal by immediately filing a notice of appeal. The filing of an
appeal by a losing party does not automatically divest the party
favored by a decision of the right to move for a more favorable
decision or to ask for execution pending appeal. It is only after all
the parties' respective periods to appeal have lapsed that the court
loses its jurisdiction over the case. As pointed out in Universal Far
East Corporation v. Court of Appeals (131 SCRA 642) the period
when a court considers and acts upon a motion for execution may
take some time. As a matter of fact, the resolution of a motion may
Rule 39
take place long after the expiration of the reglementary fifteen-day
period for appeal.
As early as 1934, this Court in People v. Ursua (60 Phil. 252)
stressed this mode of determining when an appeal is perfected.An
appeal by the defendant in a criminal case does not result in the
court's losing its jurisdiction to entertain a motion for
reconsideration filed by the offended party, insofar as civil liability
is concerned, within the 15-day period. Thus we held in Ursua:
... If the accused has the right within fifteen days to appeal from
the judgment of conviction, the offended party should have the
right within the same period to appeal from so much of the
judgment as is prejudicial to him, and his appeal should not be
made dependent on that of the accused. If upon appeal by the
accused the court altogether loses its jurisdiction over the cause,
the offended party would be deprived of his right to appeal,
although fifteen days have not yet elapsed from the date of the
judgment, if the accused files his appeal before the expiration of
said period. Therefore, if the court, independently of the appeal of
the accused, has jurisdiction, within fifteen days from the date of
the judgment, to allow the appeal of the offended party, it also has
jurisdiction to pass upon the motion for reconsideration filed by the
private prosecution in connection with the civil liability of the
accused. (at pp. 254-255).
The above ruling was reiterated in Simsim v. Belmonte (34 SCRA
536) where we stated:
Timoteo Simsim balked at the order to amend the record on appeal.
contending that it was beyond the power of the Court to issue once
his appeal had been perfected by the approval of the record. ...
... Furthermore, such a view would place it within the power of one
of the parties, by the simple expedient of immediately perfecting
his appeal, to deprive the other party of the right to ask for a
reconsideration of the decision, let alone to have the court approve
his own appeal if such a motion is denied. These consequences
find no justification in the Rules. (at pp. 538 & 539).
Rule 39
o
During the pendency of the case, as found by the trial court, the lease
contract expired and the defendants therein peacefully
surrendered the fishpond to therein plaintiff.
Rule 39
immediate execution of judgment is a good ground for
execution pending appeal" and "execution pending appeal may
be granted as long as movant files a good and sufficient
surety."
Petitioner
then
filed
a
petition
for certiorari,
prohibition
and mandamus with the Court of Appeals but dismissed said petition
and refused to reconsider such dismissal.
ISSUE(S):
1
HELD:
The Court is not persuaded by the first and third grounds invoked by
petitioner.
o
Rule 39
o
In the case at bar, the ground relied upon by the trial court in
allowing the immediate execution, as stated in its order of
March 20, 1989, is the filing of a bond by private respondents.
Anent the issue of the propriety of a special civil action for certiorari to
assail an order for execution pending appeal, the Court ruled that
although Section 1, Rule 65 of the Rules of Court provides that the
special civil action of certiorari may only be invoked when "there is no
appeal, nor any plain, speedy and adequate remedy in the (ordinary)
course of law," this rule is not without exception.
o
Also, the fact that the losing party had appealed from the
judgment does not bar the certiorari action filed in respondent
court as the appeal could not be an adequate remedy from
such premature execution.
Rule 39
o
This could not have been the intendment of the rule; hence
the Court gives its imprimatur to the propriety of petitioner's
action for certiorari in respondent court.
Rule 39
facilities and equipment due to the inundation of its campsite in
Norzagaray, Bulacan, as a direct result of the improper and careless
opening by respondent of the spillway gates of Angat Dam at the
height of typhoon "Welming" on November 4,1967.
- Granted NPCs petition and nullified the execution pending appeal rendered by
the TC. One justice dissented.
CA held the sheriff, MERALCO and ECI liable to restore to NPC the
amount due to NPC which MERALCO had earlier turned over to the
sheriff for payment to ECI.
TRIAL COURT
- Found NAPOCOR guilty of gross negligence > Ordered defendant to pay
plaintiff damages.
1. Actual or compensatory damages = P675,785.31;
2. Consequential damages = P233,200.00; *
3. Exemplary damages = P50,000
4. Attorneys fees = P50,000
Respondent filed a notice of appeal from that decision but before it could
perfect its appeal, ECI moved for and was granted execution pending
appeal upon posting a covering bond of P200,000 which it later
increased to P1,109,000 to fully answer for whatever
damages NPC might incur by reason of the premature execution of the
lower court's decision.
In granting said motion for the exceptional writ over the strong opposition
of the NPC, the trial court adopted the grounds adduced by movant ECI:
that on appeal, the case would certainly drag on for many years, and the
actual loss and damages sustained by plaintiff, who because of such loss
have become heavily obligated and financially distressed, would remain
uncompensated and unsatisfied.
Deputy Sheriff Restituto R. Quemada who was assigned to enforce the writ
of execution, garnished in favor of ECI all amounts due and payable
to NPC which were then in possession of MERALCO and sufficient
to cover the judgment sum of P1,108,985.31.
Attempts to lift the order of execution having proved futile and the offer of
a supersedeas bond having been rejected by the lower court, NPC filed
with the Appellate Court a petition for certiorari.
ISSUE: WON the execution pending appeal granted by the trial court was
proper
HELD: YES. It was proper with respect to the award of actual and exemplary
damages only.
COURT OF APPEALS
While the rule gives the court the discretionary power to allow immediate
execution, the following requisites must be satisfied for its valid exercise:
(a) There must be a motion by the prevailing party with notice
to the adverse party;
Rule 39
(b) There must be a good reasons for issuing the execution;
and
(c) The good reasons must be stated in a special order.
CA noted the instances when on review, the amounts for attorney's fees
and exemplary and moral damages were drastically cut or eliminated
altogether in the absence of proof that the losing party acted with malice,
evident bad faith or in an oppressive manner.
The point that the Court wishes to emphasize is this: Courts look
with disfavor upon any attempt to execute a judgment which has
not acquired a final character. Section 2, Rule 39, authorizing the
premature execution of judgments, being an exception to the general rule,
must be restrictively construed. It would not be a sound rule to allow
indiscriminately the execution of a money judgment, even if there is a
sufficient bond. "The reasons allowing execution must constitute superior
circumstances demanding urgency which will outweigh the injury or
damages should the losing party secure a reversal of the judgment."
Rule 39
RATIO:
Judgment was rendered in his favor five years later when he was
already 71 years, and promulgated on November 28, 1986, after he
had turned 73.
The motion was denied by the trial court on July 28, 1988, on the
ground that the grant thereof "would affect the issues involved in the
appeal."
On March 14, 1989, the petitioner filed with the trial court, the records
of the case not yet having been elevated to the appellate court, a
second motion for execution pending appeal. This was also denied on
the same ground.
On April 18, 1990, the petitioner filed a third motion for execution
pending appeal, this time with the CA. This was also denied.
It was only on September 14, 1990, that the complete records of the
case were finally elevated to the CA, at which time the petitioner was
already 75.
The petitioner now seeks certiorari under Rule 65 of the Rules of Court
against the resolutions of the CA denying his motion for execution, and
reconsideration.
ISSUE: WON the petitioner's motion for execution pending appeal should have
been granted
HELD: YES
The general rule in Rule 39, Section 1, of the Rules of Court is that a
judgment can be executed only after it has become final and
executory, or "finally disposes of the action or proceeding. Such
execution shall issue as a matter of right upon the expiration of the
final appeal therefrom if the appeal has been duly perfected."
However, execution pending appeal is allowed under Section 2 of the
same Rule
The petitioner argues that the case has been dragging for more than
ten years since it was filed in 1979, with no early resolution of the
appeal in sight.
The elevation of the records alone from the trial court took all of six
years. The proceedings in the appellate court will entail further delay.
The petitioner has grown old with the case and is now 76 years of age.
He fears he may no longer be in this world when the case is finally
decided.
The private respondent points out that the petitioner is raising the
argument about his age only at this time, when he should have
invoked it earlier. Not having been seasonably raised, the issue cannot
now be considered on appeal.
We are not persuaded by this argument. He may not have considered
himself old in 1984, but now, at 76, he is feeling his age.
While we may not agree that a man of his years is practically
moribund, the Court can appreciate his apprehension that he will not
be long for this world and may not enjoy the fruit of the judgment
before he finally passes away. That is the reason why he has raised the
issue now.
The Court realizes the seriousness of the private respondent's
challenge to the appealed decision, which appears to have been
rendered by Judge Tomas P. Maddela, Jr. on June 13, 1984, but
promulgated only after two years, when he had already retired.
The important point is that if the appealed judgment is annulled, the
complaint of the petitioner will have to be tried anew and will probably
be appealed whatever its outcome.
It will take years again before it is finally decided. By that time, the
petitioner may be facing a different judgment from a Court higher than
any earthly tribunal.
The decision on his complaint, even if it be in his favor, will have
become meaningless as far as he himself is concerned.
The Court feels that this circumstance is a "good reason" to allow
execution of the challenged judgment pending appeal, consistently
with Rule 39, Section 2. Despite the misgivings of the private
respondent, we may presume the said judgment to be valid at this
time in the absence of evidence that it is a nullity.
The applicable rule is Rule 131, Section 5, of the Rules of Court under
which it is presumed that "official duty has been regularly performed"
and that "a court, or judge acting as such, whether in the Philippines or
elsewhere, was acting in the lawful exercise of his jurisdiction."
Rule 39
We reach this conclusion on the basis not only of the law but also of
equity, which supports the law. Aequitas non facit jus, sed juri
auxiliatur.
It should be added that even if filed under Rule 45 rather than Rule 65,
the petition would still prosper.
The record shows that the petitioner was notified of the denial of his
motion for reconsideration by the respondent court on October 11,
1990, and that on October 26, 1990, he moved for and was granted an
extension of thirty days from that date within which to file his petition.
This was actually filed on November 23, 1990. The docket fees were
also paid on time, on October 26, 1990. No less importantly, the
petition raises a question of law, to wit, the correct interpretation and
application of Rule 39, Section 2, of the Rules of Court.
3.
ID.; ID.; ID.; ADVANCED AGE OF PARTY LITIGANT, "GOOD REASON" FOR
ALLOWING EXECUTION OF CHALLENGED JUDGMENT. The petitioner argues
that the case has been dragging for more than ten years since it was filed in
1979, with no early resolution of the appeal in sight. The elevation of the
records alone from the trial court took all of six years. The proceedings in the
appellate court will entail further delay. The petitioner has grown old with the
case and is now 76 years of age. He fears he may no longer be in this world
when the case is finally decided. The court feels that this circumstance is a
"good reason" to allow execution of the challenged judgment pending appeal,
consistently with Rule 39, Section 2.
4.
ID.; ID.; ID.; ID.; SUPERSEDEAS BOND, AN ADDED JUSTIFICATION. As
for the supersedeas bond, we note that the petitioner is willing to post it in the
amount to be determined by the lower court. It is of course settled that the
filing of a supersedeas bond cannot by itself alone entitle the appellee to
execution pending appeal. In the case at bar, however, we find that the bond
provides added justification, together with the advanced age of the petitioner,
for the grant of the motion under the exception to the general rule.
5.
ID.; ID.; ID.; DENIAL OF MOTION; A PROPER CASE FOR CERTIORARI.
In a petition for certiorari under Rule 65 of the Rules of Court, the impugned
decision may be reversed only if it is clearly shown to be tainted with grave
abuse of discretion amounting to lack or excess of jurisdiction. This requirement
has been established in the present case, in light of Rule 39, Section 2, and the
particular circumstance of the petitioner's advanced age, which is the most
formidable argument in his favor. We reach this conclusion on the basis not only
of the law but also of equity, which supports the law. Aequitas non facit jus, sed
juri auxiliatur.
6.
ID.; ID.; ID.; DENIAL OF MOTION BEING AN ERROR OF JUDGMENT,
REVERSIBLE UNDER RULE 45 OF THE RULES OF COURT. Even if filed under
Rule 45 rather than Rule 65, the petition would still prosper. No less importantly,
the petition raises a question of law, to wit, the correct interpretation and
application of Rule 39, Section 2, of the Rules of Court. It is therefore not correct
to say, as the private respondent does, that the petitioner is availing himself of
certiorari under Rule 65 as a substitute for a lost appeal. We are convinced that
the petitioner's motion for execution pending appeal should have been granted.
In sustaining its denial by the trial court, the respondent court committed an
error of judgment reversible under Rule 45 or grave abuse of discretion that can
be corrected under Rule 65.
Rule 39
RULE 39 SEC 2
G.R. No. L-27594. November 28, 1975.
THE DIRECTOR OF LANDS, THE DIRECTOR OF FORESTRY, and the
ARMED FORCES OF THE PHILIPPINES, petitioners, vs. HON. SALVADOR
C. REYES, as Judge of the Court of First Instance of Nueva Ecija, Branch
III, PARAAQUE INVESTMENT & DEVELOPMENT CORPORATION, ROMAN
C. TAMAYO, THE COMMISSIONER OF THE LAND REGISTRATION
COMMISSION and the REGISTER OF DEEDS OF NUEVA ECIJA,
respondents.
FACTS:
Rule 39
Deeds for the province of Nueva Ecija, and to command the respondent
court to certify the entire proceedings and to allow appeal to the
Supreme Court from its decision in toto
SC issued a writ of preliminary injunction
Rule 39
and the trial court in such action in personam is without jurisdiction to order the
register of deeds to cancel the original Certificate of Title and to issue titles to
the transferees "free from all liens and encumbrances," nor can such be
construed to authorize the register of deeds to cancel the notice of lis pendens,
which was not entered by virtue of the reconveyance case.
8.
LAND REGISTRATION; REGISTER OF DEEDS; LIS PENDENS; DUTY TO
CARRY OVER NOTICE OF LIS PENDENS ON ALL TITLES SUBSEQUENTLY ISSUED.
The register of deeds is duty bound to carry over a notice of lis pendens on
all title subsequently issued. The act of a register of deeds in erasing the notice
of lis pendens, in plain violation of his duty, constitutes misfeasance in the
performance of his duties for which he may be held civilly and even criminally
liable for any prejudice caused to innocent third parties, and cannot affect those
who are protected by the notice inscribed in the original title.
9.
ID.; INJUNCTION; VIOLATION BY REGISTER OF DEEDS OF COURT
INJUNCTION, EFFECT OF. Where the Supreme Court, in its injunction order,
restrained the register of deeds from accepting for registration documents
referring to the subject land until the petitioners shall have filed a notice of lis
pendens as to the title certificates of the adjudicatees under Section 24, Rule
14, Rules of Court, subject matter of the appealed land registration case, its
plain meaning is to enjoin registration of documents and transactions unless the
notice of lis pendens is annotated and so subject the same to the outcome of
the litigation. In such case, subsequent transferees cannot be considered
innocent purchasers for value.
10.
COURTS; LOWER COURTS CANNOT OVERRULE INJUNCTION ISSUED BY
SUPREME COURTS. A lower court cannot overrule injunctions issued by the
Supreme Court.
11.
LAND REGISTRATION; LIS PENDENS NOTICE TO ALL PERSONS. The
entry of the notice of lis pendens in the day book (primary entry book) is
sufficient to constitute registration and such entry is notice to all persons of
such adverse claim.
12.
ID.; EVIDENCE; EFFECT OF FAILURE TO SUBMIT TRACING PLAN. The
original tracing cloth plan of the land applied for, approved by the Director of
Lands, must be submitted in evidence. The submission of such plan is a
statutory requirement of mandatory character. And unless a plan and its
technical description are duly approved by the Director of Lands, the same are
not of much value.
13.
ID.; ID.; LAND REGISTRATION COMMISSION, NO AUTHORITY TO
APPROVE ORIGINAL SURVEY PLANS. The applicant may not justify the nonsubmission of the original tracing cloth plan by claiming that the same may be
with the Land Registration Commission (LRC) which checked or verified the
survey plan and the technical descriptions thereof, for it is not the function of
the LRC to check the original survey plan as it has no authority to approve
original survey plans.
14.
ID.; ID.; PURPOSE OF REQUIRING SUBMISSION OF TRACING CLOTH
PLAN. The applicant is not relieved from submitting in evidence the original
tracing cloth plan approved by the Director of Lands as required by law. One of
the distinguishing marks of the Torrens System is the absolute certainty of the
identity of a registered land. Consequently the primary purpose of the aforesaid
requirement is to fix the exact or definite identity of the land as shown in the
plan and technical descriptions. Hence, the applicant is not relieved of his duty
of submitting the acreage.
15.
ID.; ID.; LANDS ACQUIRED UNDER INFORMACION POSSESSORIA
LIMITED TO 1,000 HECTARES. Where the claim of an applicant is based on an
alleged informacion possessoria but the alleged informacion possessoria covers
an area of "sies mil quinones, poco mas o menos" or an equivalent of 16,800
hectares, while under the Royal Decrees in force at the time of the supposed
acquisition, no one could acquire public land in excess of 1,000 hectares, since
the Royal Decrees of November 25, 1880 and October 26, 1881, prohibited any
grant of public land in excess of 1,000 hectares, such a factor would weigh
heavily against the applicant's claim.
16
ID.; ID.; INFORMACION POSSESSORIA, NATURE OF. A document which
states: "en su virtud habieno examinado el Registro nuevamente formado por la
perdida o destruccion del mismo y no hallando en ningun asiento contrario a lo
relacionado reinscribe la posesion de la finca de este numero a favor de Don
Melecio Padilla sin perjuico de tercero que puede tener mejor derecho de la
propiedad" is not a titulo de informacion possessoria, because it was merely a
certification of possession over the property, and was issued without prejudice
to a third party or parties having a better right. Under Spanish Law, in order that
an informacion possessoria may be considered as title of ownership, it must be
proven that the holder thereof has complied with the provisions of Article 393 of
the Spanish Mortgage Law.
17.
ID.; ID.; ID.; CONVERSION OF INFORMACION POSSESSORIA INTO
RECORD OF OWNERSHIP. Where the supposed holder of an informacion
possessoria died 5 years after the inscription of the informacion, he could not
have converted the same into a record of ownership 20 years after such
inscription, pursuant to Art, 393 of the Spanish Mortgage Law. One year after
the promulgation of the Maura Law, or on April 17, 1895, the right to perfect
possessory information title under the law expired. After that date, full property
right of the land reverted to the government and the right of the cultivator and
possessor to obtain gratuitous title was extinguished.
18.
ID.; POSSESSION; OPEN AND CONTINUOUS POSSESSION. Where the
evidence shows that before the military reservation on the land applied for was
established, the land involved was largely mountainous and forested; that
approximately 13,975 hectares of said land consist of public forest; that during
the lifetime of applicant's predecessors-in-interest only a small portion thereof
was cleared and cultivated under the "kaingin" system, while some portions
were used as grazing land; that the succeeding possessors caused the planting
of vegetables thereon by 40 tenants, that when the applicants took possession
of the land, they had to abandon the place due to the unsettled peace and order
conditions in the area, and that when they tried to reoccupy the land they were
prevented by the army, it is obvious, on the basis of said facts, that neither the
applicant nor his predecessors-in-interest had been in open, continuous,
exclusive, and notorious possession and occupation of the property in question
under bona fide claim of acquisition of ownership for at least thirty years
immediately preceding the filing of the application for confirmation of title.
19.
ID.; ID.; CASUAL CULTIVATION OF PORTIONS OF LAND DOES NOT
CONSTITUTE POSSESSION UNDER CLAIM OF OWNERSHIP. A mere casual
cultivation of portions of a public land by the claimant, and the raising thereon
of cattle, do not constitute possession under claim of ownership. In that sense
Rule 39
possession is not exclusive and notorious so as to give rise to a presumptive
grant from the State. While grazing livestock over the land is of course to be
considered with other acts of dominion to show possession, the mere occupancy
thereof by grazing livestock upon it, without substantial inclosures or other
permanent improvements, is not sufficient to support a claim of title through
acquisitive prescription.
20.
ID.; ID.; PUBLIC LAND; ACQUISITIVE PRESCRIPTION. The possession
of public land, however long the period may have extended, never confers title
thereto upon the possessor because the statute of limitations with regard to
public land does not operate against the State, unless the occupant can prove
possession and occupation of the same under claim of ownership for the
required number of years to constitute a grant from the State.
21.
ID.; ID.; ID.; TAX DECLARATION, PROOF THAT HOLDER HAD A CLAIM
OVER THE PROPERTY. While tax receipts and declarations of ownership for
taxation purposes are not incontrovertible evidence of ownership, they
constitutes at least proof that the holder had a claim of title over the property.
22.
ID.; ID.; ID.; PUBLIC LAND ACT EXCLUDES FORESTS. Section 48(b) of
Com. Act No. 141, as amended, applies exclusively to public agricultural land.
Forest lands or areas covered with forest are excluded, and are incapable of
registration, and its inclusion in a title, whether such title be one issued during
the Spanish sovereignty or under the present Torrens system of registration,
nullifies the title.
23.
ID.; ID.; MILITARY RESERVATIONS; CLAIMANT MUST SHOW TITLE.
Under presidential proclamation reserving an area for military purposes which
states that the same is subject to "private rights, if any there be," the applicant
must prove its private rights over the property. For it is well settled that unless
the applicant has shown by clear and convincing evidence that the property in
question was ever acquired by him or his ancestors either by composition title
from the Spanish Government or by possessory information title, or any other
means for the acquisition of lands, the property must be held to be part of the
public domain.
DISPOSITIVE PORTION: WHEREFORE, decision in the above case is hereby
rendered:
(1)
in G. R. No. L-27594, the petition for certiorari is granted; the order
dated March 11, 1967 in LRC Case No. N-675, LRC Rec. No. N-25545, the decree
of registration issued pursuant thereto (Decree No. 113485 dated March 14,
1967), and Original Certificate of Title No. 0-3151 of the Registry of Deeds of
Nueva Ecija are all declared void; the Registry of Deeds of Nueva Ecija is
ordered to recall and cancel all transfer certificates of title, including owners'
duplicates and mortgagees' copies, if any, arising out of Original Certificate of
Title No. 0-3151; the preliminary injunction issued on June 5, 1967 and the
temporary restraining order issued on June 1, 1973 are made final and
permanent, with costs against respondents (except respondent Judge); and
(2)
in G. R. No. L-28144, the appealed decision is hereby reversed and set
aside, and judgment is rendered dismissing the application for registration.
Rule 39
It was only when the check was cleared on January 17, 1980
that the petitioner learned about GELAC having already
taken custody of the subject tractor.
RTC
CA
Respondents Contention:
Rule 39
at the time of the execution of the deed of sale, no constructive
delivery was effected since the consummation of the sale
depended upon the clearance and encashment of the check
which was issued in payment of the subject tractor.
ISSUE 1:
Whether Dy, as mortgagor, could validly sell the mortgaged
tractor
HELD: YES. He remained the owner.
The mortgagor who gave the property as security under a
chattel mortgage did not part with the ownership over the
same. He had the right to sell it although he was under the
obligation to secure the written consent of the mortgagee or he
lays himself open to criminal prosecution under the provision of
Article 319 par. 2 of the Revised Penal Code. And even if no
consent was obtained from the mortgagee, the validity of the
sale would still not be affected.
There is no reason why Wilfredo Dy, as the chattel mortgagor
can not sell the subject tractor. There is no dispute that the
consent of Libra Finance was obtained in the instant case. Libra
allowed the petitioner to purchase the tractor and assume the
mortgage debt of his brother. The sale between the brothers
was therefore valid and binding as between them and to the
mortgagee, as well.
Re Actual Possession vis a vis the right to sell
While it is true that Wilfredo Dy was not in actual possession
and control of the subject tractor, his right of ownership was not
divested from him upon his default. Neither could it be said that
Libra was the owner of the subject tractor because the
mortgagee can not become the owner of or convert and
appropriate to himself the property mortgaged. (Article 2088,
Civil Code) Said property continues to belong to the mortgagor.
The only remedy given to the mortgagee is to have said
Rule 39
prosecute his claim. (Consolidated Bank and Trust Corp. v. Court
of Appeals, supra) This is precisely what the petitioner did when
he filed the action for replevin with the RTC.
DISPOSITIVE: Petition is granted. RTC decision is reinstated.
Rule 39
[G.R. No. L-6770. August 31, 1954.]
HONORABLE MARCIANO ROQUE, ETC., petitioners, vs. PABLO
DELGADO, ET AL., respondents.
FACTS:
ISSUE:
WON the order issued by Judge Yatco should be annulled
HELD:
NO.
It is contended for the petitioner that the respondent Judge
acted with grave abuse of discretion or in excess or lack of
jurisdiction, because when the order restoring the writ of
preliminary injunction was issued, there was no pending
appeal.
It appears, however, that in the petition dated April 23, 1953,
filed in Civil Case No. 9616, it was expressly alleged that, in
their projected appeal, the petitioners therein would in effect
assail the correctness of the decision in said case.
Section 4 of Rule 39 provides that "the trial court,
however, in its discretion, when an appeal is taken from
a judgment granting, dissolving or denying an
injunction, may make an order suspending, modifying,
restoring, or granting such injunction during the
pendency of the appeal, upon such terms as to bond or
otherwise as it may consider proper for the security of
the rights of the adverse party."
Although this provision speaks of an appeal being taken and of
the pendency of the appeal, we cannot see any difference, for
all practical purposes, between the period when appeal has
been taken and the period during which an appeal may be
perfected, since in both cases the judgment is not final.
As a matter of fact there is authority to the effect that the trial
court may restore a preliminary injunction in anticipation of an
appeal. (Louisville & N. R. Co. et al. vs. United States et al., 227
Fed. 273.)
Rule 39
PETITIONER: It is also argued for the petitioner that at the time the
order of June 1, 1953, was issued by the respondent Judge, the act
sought to be enjoined had already been performed, the cockpit in
question having been actually closed on May 24 and 31, 1953.
SC:
Rule 39
G.R. No. L-63188 June 13, 1990
FERNANDO, PELAGIO, CARLOS, JULIA and JUANA, all surnamed
ARANDA, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, MARCELO DE LARA, MARIA DE
LARA, and DOMINADOR, PEDRO, and LIBRADA, all surnamed
RAMOS, respondents.
The TC, pursuant to the reversal by the Appellate Court issued an order
which required the Arandas (plaintiffs in execution) to re convey to
private respondents within five (5) days from notice the properties
transferred to them by virtue of the writ of execution pending appeal,
with the exception of the property covered by TCT No. 98052, and
authorized the clerk of court to execute the proper documents of
reconveyance should the Arandas fail to comply. The order further
required the petitioners to return to private respondent Marcelo de Lara
the jeepney which was levied on execution or to turn over the proceeds
of the sale thereof.
After hearing the arguments of both parties in said motion to nullify the
titles, the lower court issued an order cancelling the title of certain lots
while the other lots issued in favor of Alfredo Cruz and Aurelia Oxiles
were not nullified.
Having failed in their attempt to nullify the titles now in the names of
Cruz and Oxiles, private respondents filed an amended motion for
restitution with motion for contempt, which motions were rejected by the
trial court on the ground that the consolidated ownership of said realty in
the names of mortgagees Cruz and Oxiles could no longer be disturbed
in said proceedings. However, this would not bar the De Laras, et al.
from going after the Arandas in a separate direct action to seek redress
for the former's inability to recover the said properties.
FACTS:
Meanwhile, on June 11, 1970, while their appeal was still pending
before the Appellate Court, private respondents decided to register with
the Register of Deeds of Bulacan notices of lis pendens on all transfer
Rule 39
ISSUE: WoN CA erred in giving due course to the special civil action of certiorari
in CA-G.R. No. 14821-SP despite the lapsed remedy of ordinary appeal
HELD: NO.
-
While the lower court correctly denied the motion to nullify the subject
titles in the names of Cruz and Oxiles, it failed to provide private
respondents complete restitution as decreed in Section 5, Rule 39 of the
Rules of Court which states:
While the trial court may have acted judiciously under the premises, its
action resulted in grave injustice to the private respondents. It cannot be
gainsaid that it is incumbent upon the plaintiffs in execution (Arandas) to
return whatever they got by means of the judgment prior to its reversal.
And if perchance some of the properties might have passed on to
innocent third parties as happened in the case at bar, the Arandas are
duty bound nonetheless to return the corresponding value of said
properties as mandated by the Rules.
Rule 39
Title:
TOMAS HILARIO, VICENTE BAGUIO, J. N. BELTRAN and
MARIANO FUENTECILLA, Plaintiffs-Appellees, v. W. E.
HICKS, KUENZLE & STREIFF, ALHAMBRA CIGAR
FACTORY, PACIFIC COMMERCIAL COMPANY, MANILA
WINE MERCHANTS & CO. (FORMERLY SULLIVAN &
FRANCIS), SAN MIGUEL BREWERY and DIONISIO VIDAL,
as deputy sheriff, Defendants-Appellants.
Facts:
Rule 39
Issue:
WON the buyers at the auction sale should restitute the
properties they bought to the respective owners?
Held/Ratio:
Now, in order to discover the true scope and extent of the
duty of the execution creditor in a case of this kind, it is important
to consider the exact nature of the judgment finally rendered in the
appellate court, that is, to discover whether that judgment was
Rule 39
really a reversal or a mere modification of the original judgment;
for by this distinction must the question be determined whether the
creditor can be compelled to make specific restitution of the
properties bid in by him or can only be required to restore the
excess actually realized by the sheriffs sale. The authorities are
practically harmonious upon the proposition that specific
restitution can be enforced in case of a complete reversal, but it is
generally accepted that if the judgment is merely modified in its
amount and affirmed in other respects, the creditor cannot be
compelled to make specific restitution, though he can be required
to restore the excess realized upon the execution over and above
the amount finally awarded.
In the case before us the judgment of this court was in terms a
reversal, and a new judgment was rendered for the amount found
to be actually due; and we are of the opinion that, for the purposes
of this litigation, such an order must be taken to operate with all
the effect of a complete reversal. It is undoubtedly true, as is
observed by the author of the annotation to Cowdery v. London
and San Francisco Bank, in volume 96 of the American State
Reports, at page 126, that appellate courts sometimes, and perhaps
often enter orders of reversal without having in mind the questions
which may afterwards be presented because of proceedings taken
under a judgment while it remained in force, and when, in view of
those questions a modification rather than a reversal should have
been directed, nevertheless when the order is made and free from
ambiguity, it must be given effect in the form in which it is framed.
"If an order declares that a judgment is reversed, it must be treated
as at an end." (Id., p. 126.)
In the case referred to (Cowdery v. London and San Francisco
Bank, 139 Cal., 298-[96 Am. St. Rep., 115]), it appeared that the
Supreme Court of California had made an order reversing a
Rule 39
nor could it, change the reversal to a mere modification. Neither
can the fact that it may now appear to us that the same result could
have been reached by a modification justify this court in now
changing the effect of the mandate."cralaw virtua1aw library
In view of the foregoing, the final judgment entered upon appeal in
case No. 292 must be considered to have been a reversal rather
than a mere modification of the original judgment and upon this
hypothesis we proceed to consider the effect of this reversal upon
rights of the respective parties.
Upon one proposition all authorities concur, which is, that as to
those properties which were sold by the sheriff to third parties, the
sale is in no wise affected by the subsequent reversal of the
judgment by the Supreme Court. The doctrine is everywhere
accepted that the title of one who buys at a sheriffs sale, being a
stranger to the proceedings, will not be affected by the subsequent
reversal of the judgment, unless of course for want of jurisdiction
over the subject matter or over the party whose title was sought to
be divested. (10 R. C. L., 1233; 17 Cyc., 1309.) Therefore, as to
those properties which were sold to third parties, the obligation of
the creditors is limited to the duty to account for the amount
realized at the sheriffs sale in excess of the amount of the final
judgment, together with interest upon such excess from the date of
the sale.
The position of a creditor with respect to property bid in by him is
different; and it is held with practical unanimity that the creditor
buying at his own sale takes subject to the eventuality of the
lawsuit and may be required, if the execution debtor so elects, to
surrender the property and account for mesne profits when the
judgment is finally reversed. (See cases cited in note to Cowdery v.
London and San Francisco Bank, 96 Am. St. Rep., 137-139; 17
Rule 39
As petitioner did not want to comply with the writ of execution, the
private respondents filed on March 11, 1970 a motion for demolition
of the residential house of petitioner on the lot of the private
respondents. In due time the City Court issued the order of
demolition.
As the Office of the Chief of Police could not carry out the order of
demolition as shown in the return of Francisco Tanjuakio dated
November 19, 1974, the private respondents filed a motion for
the issuance of an alias writ of execution. An alias writ of
execution was issued on November 21, 1974.
Rule 39
On January 13, 1975 the City Sheriff made a return of thealias writ of
execution with the information that the petitioner refused to comply
with it and insisted in occupying the premises involve
ed in the litigation.
On January 25, 1975 the City Court of Angeles City issued the
corresponding order of demolition but on February 25, 1975 when the
City Sheriff of Angeles City tried to implement the order of demolition,
he was constrained to stop because of the promise of
petitioner to remove the residential house in question within
thirty (30) days from the execution of the agreement he
entered with the City Sheriff and private respondent Horacio
Gomez before the City Fiscal of Angeles City.
the lot of private respondents and from the order denying his motion for
reconsideration.
HELD:
Petitioner's contention that the respondent Court erred in not holding that he
may appeal from the order of the City Court denying his motion to recall the
order of demolition of his residential house on the lot of private respondents and
from the order denying his motion for reconsideration, has no merit.
Said motion to recall the order of demolition was denied and a motion
to reconsider said order denying the motion to recall the order of
demolition was likewise denied.
His proper recourse, if any, would have been through a special civil
action of certiorari or prohibition if valid grounds existed to assail the
trial court's orders for lack of Jurisdiction or grave abuse of discretion.
On July 16, 1975, private respondents filed with the City Court of
Angeles City an opposition to the petitioner's notice of appeal.
ISSUE:
Whether or not the petitioner may appeal from the order of the City Court
denying his motion to recall the order of demolition of his residential house on
Rule 39
o
Rule 39
petitioner belonging to B.R. Sebastian & Associates, Inc.,
particularly the judgment in Civil Case No. 77140 in the amount of
P2,007,157.00 to satisfy the amount of P580,228.19 adjudged to be paid by
B.R. Sebastian & Associates, Inc. to respondent PCIB in Civil Case No.
79092.
G.R. No. 93238 August 31, 1992
Later, PCIB filed a Motion with the respondent trial court to Require the
National Power Corporation to Satisfy the Judgment of November 26, 1970
in Civil Case No. 79092. It prays that an order be issued directing
petitioner to remit the "unsatisfied amount" of P340,971.41 plus
interest until full payment thereof is made as it is the respondent trial court
that has jurisdiction to enforce and satisfy the judgment of November 26,
1970 in Civil Case No. 79092 as stated in the decision of the Court of
Appeals in CA.G.R. CV No. 9678. The motion was granted.
TRIAL COURT
- Rendered a decision in favor of respondent PCIB wherein B.R. Sebastian &
Associates, Inc. was ordered to pay respondent PCIB the amount of
P580,228.19 which decision was affirmed by the Court of Appeals and
the same became final and executory on March 2, 1972.
Rule 39
HELD: YES. SC found no merit in the peftition.
However, in the case at bar, it was the petitioner who caused the
delay in the payment of the remaining balance of the aforesaid
Notice of Garnishment. Therefore, the delay of more than 10 years
from the time the judgment of November 26, 1970 became final
and executory should not be counted in computing the 5-year
period in executing a judgment by motion, since the delay was not
respondent's doing but petitioner's.
In computing the time limited for suing out an execution, although there is
authority to the contrary, the general rule is that there should not be
included the time when execution is stayed, either by agreement of the
parties for a definite time, by injunction, by the taking of an appeal or writ
of error so as to operate as a supersedeas, by the death of a party, or
otherwise. Any interruption or delay occasioned by the debtor will
extend the time within which the writ may be issued without scire
facias.
Rule 39
On March 26, 1958, counsel for the oppositors filed a motion, alleging
that the applicant had abandoned his right to the reimbursement of his
expenses for registration and praying that a decree for the registration
of the land be issued in the name of the oppositors.
Opposition to this petition was again filed by attorney for the applicant,
on the ground that as the decision in the case became final 30 days
after November 28, 1931, and the oppositors have slept on their rights,
their cause of action is barred by Statute of Limitations.
The lower court overruled the objection and on May 14, 1958, it
ordered issuance of the decree of registration of the parcels of land in
the name of the oppositors.
ISSUE #1: WON the decision in the registration case was rendered on November
28, 1931, it had become unenforceable 15 years later, that is, at the time the
petition for the reconstitution of the records was presented on June 24, 1947.
HELD: NO
On June 24, 1947, attorney for oppositor Eulalio Menla filed a petition
for reconstitution, alleging that the court records of the above-entitled
case were destroyed in or about March, 1945.
Notice for the hearing of the abovemotion was furnished the attorney
for the applicant Pascual Sta. Ana, who filed a motion to dismiss the
petition for reconstitution, on the ground that the cause of action is
barred by the Statute of Limitations.
On November 21, 1957, the court denied the motion to dismiss and
ordered the records of the above-entitled case reconstituted upon (a)
the transcript of stenographic notes taken during the trial; (b) the blue
print plan, PSU 9624 and 96264 covering the land in question; and (c)
the decision of the court dated November 28, 1931.
The loss occurred during the Liberation of this country in 1945, and the
application for the reconstitution was made on June 24, 1947.
ISSUE #2: WON THE LOWER COURT ERRED IN ORDERING THAT THE DECISION
RENDERED IN THIS LAND REGISTRATION CASE ON NOVEMBER 28, 1931 OR
TWENTY SIX YEARS AGO, HAS NOT YET BECOME FINAL AND UNENFORCEABLE.
HELD: NO
This provision of the Rules refers to civil actions and is not applicable
to special proceedings, such as a land registration case because a
Rule 39
party in a civil action must immediately enforce a judgment that is
secured as against the adverse party, and his failure to act to enforce
the same within a reasonable time as provided in the Rules makes the
decision unenforceable against the losing party.
ISSUE #3: WON THE LOWER COURT ERRED IN ORDERING THE ISSUANCE OF A
DECREE OF REGISTRATION IN THE NAMES OF THE OPPOSITORS-APPELLEES
BASED ON A DECISION WHICH HAS ALLEGEDLY NOT YET BECOME FINAL, AND IN
ANY CASE ON A DECISION THAT HAS BEEN BARRED BY THE STATUTE OF
LIMITATIONS.
HELD: NO
There is nothing in the law that limits the period within which the court
may order or issue a decree.
RULE 39 SEC 6
G.R. Nos. L-49315 and 60966. February 20, 1984.
BERNARDA S. CANONIZADO, petitioner, vs. THE HONORABLE JUDGE
REGINA G. ORDONEZ BENITEZ Presiding Judge of the Juvenile and
Domestic Relations Court Manila, and ATTY. CESAR R. CANONIZADO,
respondents.
FACTS:
However, the writ was recalled and set aside to enable the
plaintiff, petitioner herein, to correct the amount therein
stated.
. The total amount due her as of this latter date was determined at
P16,150.00, for the period from October, 1964 to April, 1969.
On July 11, 1973, the petitioner and the respondent entered into
an agreement4
4STIPULATIONS OF THEIR AGREEMENT "2.The total arrears in support payable to Mrs. Bernarda
Canonizado as of December, 1972 is determined at SEVENTEEN THOUSAND TWO HUNDRED PESOS
(P17,200.00). A moratorium of payment will be observed on this amount.
"3.
On or before July 31, 1973, Mr. Canonizado will deposit the amount of SEVEN HUNDRED PESOS
(P700.00) covering support from January to July, 1973. Henceforth, current support of ONE HUNDRED
PESOS (P100.00) will be deposited within the first ten (10) days of every month punctually.
"4.
At any time that Mr. Canonizado will receive a sizeable income, payment on the arrears in
support of P17,200.00 will be made partially or in full, depending on the income received.
"5.
At any time that Mr. Canonizado should fail to remit current support for four (4) consecutive
months then the total arrears in support will be immediately due and demandable.
"6.
Mr. Canonizado also agrees that upon receipt of an income, he will liquidate the unpaid support
due their daughter Christina, the same to be given to Bernarda Canonizado
Rule 39
statement of the total arrears in support and application to the
Clerk of Court, a writ of execution shall be issued.
On July 14, 1976, the lower court ordered the issuance of a writ
of execution for the collection of the amounts of P16,150.00
and P17,200.00 and for the calling of the case on August 2, 1976
for respondent to show cause why he should not be found in contempt
of court for failure to pay the arrears in support.
On July 22, 1976, a writ of execution was issued.
Rule 39
the recipient may engage in a trade, profession, or industry, or has obtained
work, or has improved his fortune in such a way that he no longer needs the
allowance for his subsistence;" When any of the above circumstances occurs,
the support stops since the recipient no longer needs it for subsistence. It does
not mean, however, that the obligation to give or the right to ask for support
also ceases permanently because the lack of a need for it may only be
temporary. In other words, the above circumstances do not affect the right to
support between spouses but only the action to make it demandable, such right
being born from the law and created as such by the marriage tie. It subsists
throughout the period that the marriage subsists.
TRIAL COURT TO DETERMINE NEED FOR SUPPORT SUBJECT TO PRESENTATION
OF EVIDENCE IN THE SAME CASE. It is not necessary to file a separate
action for a suspension of current support. The matter of determining
whether or not petitioner is entitled to support up to the present is
subject to the presentation of evidence both by the petitioner and the
respondent and is for the lower court to decide. The respondent judge,
therefore, cannot be compelled by mandamus to order respondent to pay
current support when the latter alleges that a ground exists for the suspension
of such obligation.
NEVER ATTAINS FINALITY. A judgment for support is never final in the
sense that not only can its amount be subject to increase or decrease
but its demandability may also be suspended or re-enforced when
appropriate circumstances exist.
DISPOSITIVE: WHEREFORE, the petition in G.R. No. L-49315 is GRANTED, and
the respondent court is hereby ordered to immediately issue the alias writ of
execution prayed for by herein petitioner. Respondent Cesar Canonizado is also
ordered to pay the sum of P3,000.00 as attorney's fees and costs. The petition
in G.R. No. 60966 is DISMISSED for lack of merit. The respondent court is
directed to set the case for hearings on whether or not there is a continuing
need for current support.
Rule 39
Rule 39
Deputy Sheriff Del Rosario (the new sheriff assigned for the
execution) served a notice of garnishment on the depository
bank of petitioner and garnished total amount of P64,408.
Rule 39
Anent the applicability of Section 15, Rule 39, 5 the judgment debt cannot be
considered satisfied and therefore the orders of the respondent judge granting
the alias writ of execution may not be pronounced as a nullity.
(RTC decision:) It is clear and manifest that after
levy or garnishment, for a judgment to be
executed there is the requisite of payment by the
officer to the judgment creditor, or his attorney,
so much of the proceeds as will satisfy the
judgment and none such payment had been
concededly made yet by the absconding Sheriff
to the private respondent Amelia Tan. The
ultimate and essential step to complete the
execution of the judgment not having been
performed by the City Sheriff, the judgment debt
legally and factually remains unsatisfied.
Re Execution vs Satisfaction:
Execution is the process which carries into effect a decree or
judgment, whereas the satisfaction of a judgment is the
payment of the amount of the writ, or a lawful tender thereof,
or the conversion by sale of the debtor's property into an
amount equal to that due, and, it may be done otherwise than
upon an execution (Section 47, Rule 39). Levy and delivery by
an execution officer are not prerequisites to the satisfaction of a
judgment when the same has already been realized in fact
(Section 47, Rule 39). Execution is for the sheriff to accomplish
Rule 39
The complaint filed with the DOJ on February 20, 1973 alleged
that the complainants in the instant administrative case are
defendants in Civil Case No. 78096 entitled "Nicasio Palalon,
et al., vs. Felicitas Choco et al., " Branch II;
6 This is a case filed by Nicasio Palalon et. al., as Plaintiffs against Felicitas Salazar et. al.,
for recovery of sum of money and damages with preliminary attachment
Rule 39
in good running condition and at that time operating within the
City of Davao as public utilities, being used for carriage of
and/or cargoes;
ISSUE:
that One (1) unit of the attached vehicles was sold for Only
P3,000.00; that more of the attachments, if not all of these
vehicle to be attached, who owned by other people and not by
the complainants;
The total claim of the plaintiffs in Civil Case No. 7809 was only
about P28,000.00.
Rule 39
Rule 39
VICTORIANO L. ABOGATAL, Deputy Sheriff, CFI, Misamis Occidental,
Ozamiz City Branch II, respondent.
AQUINO, J.:
FACTS:
In the case of Pablo L. Barola, et al. vs. Serapion Gomez, et al., Judge
Melecio Genato rendered a judgment on ordering defendant Gomez to
pay P15,340 as damages for the death of Felipa Lambayong Barola's
mother.
Barola in his administrative complaint alleged that on January 15, 1978,
the writ of execution to enforce the said final judgment was given to
Victoriano L. Abogatal, a deputy sheriff. That although Abogatal listed
the personal properties of Gomez which could be levied upon (a
refrigerator, electric fans, sewing machine and a stereo-phonograph)
and although Abogatal even told Gomez not to remove those properties
and to post a bond, he (the sheriff) did not proceed with their auction
sale allegedly because he received "a folded envelope" from the
judgment debtor, Gomez.
Rule 39
Title:
A.M. No. 1065
January 31, 1978
ANDRES M. AQUINO, Complainant, vs. MELECIO N.
AFICIAL, Deputy Sheriff, Court of First Instance, Dagupan City,
Respondent.
Facts:
Rule 39
Rule 39
Issue:
WON the Sheriff entered into a valid compromise
agreement with judgment debtor?
Held:
No!
Ratio:
Section 15, Rule 39 of the Rule of Court explicitly makes it
the duty of the sheriff to levy on all the property or on a
insufficient amount of such property of the judgment debtor not
exempt from execution, as will satisfy the amount of the judgment
and costs included in the writ of execution. While the respondent
was justified in not on the cooking utensils and the tools and
implements used by the judgment debtor in shoemaking , his trade,
for these are exempt from execution, it was incumbent upon said
respondent to levy on the other properties found within the
premises occupied by the judgment debtor.
Rule 39
Negligence in the performance of official duties is one of the
grounds for diciplinary action against public officials and
employees under Presidential Decree No. 6. It falls under the
classification of a leas grave offense in accordance with Civil
Service Commission Memorandum Circular No. 8, Series of 1970.
8Considering the lances of the case and in fine with Our decisions
in Recto vs. Racelis 9 and Estioko, Sr. vs. Cantos, 10 the
appropriate imposable penalty for respondent's negligence is
suspension from office for six (6) months without pay.
WHEREFORE, the respondent Melecio N. Aficial, is declared of
gross negligence in the performance of his duties as Deputy Sheriff
of the Court of First Instance of Dagupan City, and he is hereby
suspended from office for a period of six (6) months without pay to
commence immediately after the final entry of judgment in this
case, with the seaming that a repetition of the same or similar act
wig be dealt with more severely.
May 5, 1979
Rule 39
In the same order, the motions of private respondent were
granted and the Sheriff of Pasay City was ordered "to demolish
the house/structure of the defendant (petitioner) erected on
the plaintiff's property and to remove the same therefrom."
On July 26, 1976, the Deputy Sheriff of Pasay City, in a letter of even
date, notified the petitioner.
Petitioner in seeking to annul the order of respondent Judge dated
July 8, 1976 and to restrain the Sheriff of Pasay City from demolishing
her house cites as basis for her petition section 147, Rule 39 of
the Revised Rules of Court.
PETITIONERS CONTENTION:
The respondent Judge failed to
observe said provision in not setting for hearing private respondent's
motion for order of demolition and motion for issuance of alias writ and
order of demolition and in the questioned order the court did not fix a
definite reasonable period within which her house should be removed,
thus rendering the order of the court granting said motions null and
void.
Under Section 13 (now 14). Rule 39, the officer called upon to
enforce a final judgment involving delivery or restitution of
property may do so by placing the plaintiff in possession of
such property, but 'the officer shall not destroy, demolish or
remove the improvements made by the defendant or his
agent on the property, except by special order of the court,
which order may only issue upon petition of the plaintiff after
due hearing and upon the defendant's failure to remove the
improvements within a reasonable time to be fixed by the
court.'
HELD:
ISSUE:
Rule 39
o
Under Rule 39, section 14, the appellant's house could not be
removed pending appellee's recourse to the Court for a
special order for the demolition and removal of such
improvements constructed by the appellant, which order is
to be issued 'upon petition of the judgment creditor after
due hearing and after the former has failed to remove the
same within a reasonable time fixed by the Court.
Rule 39
ownership by the lessee of another residential unit in Alabang, Muntinlupa,
Metro Manila.
MTC
- Found that all three grounds were duly established, any of which was sufficient
to justify Arcadio's ejectment.
HELD: NO. The complaint must be dismissed for lack of legal basis.
The case of Keith vs. Johnson summed up the rules on the extent of the
authority of an officer to enter a man's house, in this wise:
Thereupon, Arcadio filed a petition for certiorari with the Regional Trial Court,
which issued a TRO on May 16, 1984.
The common law, jealous of intrusion upon domestic peace and security,
did not permit an officer to break open an outer door of the defendant's
dwelling house, for the purpose of executing a ca. sa. upon a person, or of
levying a fi. fa. on the goods of the defendant, unless the king was plaintiff.
Every man's house was deemed his castle, and an ordinary judicial writ did
not authorize the opening of the outer door, lest the king's enemies might
enter; but the officer, once legally in the house, had a right to open an
inner door: ... But the executions in civil cases for specific property might
have authorized the breaking of the house, if the officer could not
otherwise execute the command of the writ.
On June 5, 1984, the petition was dismissed and accordingly, the restraining
order was lifted, thereby paving the way for execution.
Thus, pursuant to the writ of execution, Sheriffs Johnny Reyes and Florencio
Pangilinan, accompanied by Barangay Secretary Teresita Magnaye,
Kabataang Barangay Chairman Marcelino Daligdig and the respondent,
proceeded to the subject premises in the morning of June 7, 1984. It was
the manner in which the writ was carried out which led to the filing of the
instant administrative case.
The records show that the writ of execution issued by Judge Gorospe, Jr. of
the Metropolitan Trial Court on May 10, 1984 partakes of the nature of
a habere facias possessionem. It commanded the sheriff to cause the
Rule 39
defendant Arcadio to vacate the premises of the plaintiffs bearing No. 26 in
Barangay Paltok, San Francisco del Monte, Quezon City, as well as all
persons claiming rights under her and restore possession thereof to the
plaintiff. Since it is not disputed that no one was in the apartment
at the time execution was carried into effect and the doors,
windows and outer gate were padlocked, there was no need for the
sheriffs and the respondent to secure a "break-open" order
inasmuch as the character of the writ in their hands authorized
them to break open the apartment, if they could not otherwise
execute its command.
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Nolasco brought suit in the CFI against MAI to recover damages; but he
also presented a motion to dismiss his own case, based on lack of
jurisdiction, which the Court granted on August 26, 1982.
Nolasco, Twelve (12) days later, or on September 24, 1982 the latter
filed an "Appeal" assailing the Arbiter's finding of "duplication" or res
judicata and broadly hinting that the Arbiter had knowingly rendered
an unjust judgment.
While his appeal from the Lasquite decision was pending before the
NLRC, Nolasco filed on January 10, 1985 a motion for an alias writ of
execution, to compel payment to him pursuant to the Estrella Decision
of "accrued backwages from December 1981 to the present" as well as
"his yearly Christmas bonus or 13th month pay for 1981, 1982, 1983,
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1984 and 1985," in view of MAI's failure of "compliance to the
reinstatement of complainant."
Over MAI's objections that inter alia the matter was pending appeal,
and that reinstatement had been mooted, Director Severo Pucan
who had taken over from Mr. Estrella as Director of the National Capital
Region issued the alias writ prayed for, under date of February 6,
1985. Pursuant thereto, MAI's deposit with the Bank of America was
garnished to the extent of P239,850.00.
Director Pucan gave due course to MAI's appeal, ordering the elevation
of the record to the Labor Appeals Review Staff, Office of the Minister,
and requiring MAI, to stay "execution of the judgment award," "to post
a supersedeas bond in the amount of P239,050.00 within ten (10)
days."
This second appeal, like the first, was also given due course by Director
Pucan, by Order dated June 7, 1985.
Shortly before noon on May 28, 1985, MAI's attorneys were advised by
the Bank of America over the telephone that Sheriff Alfonso Balais, Jr.
and Nolasco were able to obtain from it and then encash an uncrossed
manager's check amounting to P239,850.00, which was the amount
set forth in the alias writ of execution dated February 6, 1985.
On June 3, 1985, MAI filed with the Office of the Labor Minister a
MOTION FOR RECONSIDERATION
For this reason, Leogardo continued, Nolasco was "no longer entitled to
back wages after he became 60 years old in May, 1982; . . . (and) back
wages paid to him after May, 1982 should be credited as (full
satisfaction of) retirement pay benefits. Hence, according to Leogardo,
"the judgment . . . should be . . . considered fully satisfied and . . . (the
case) deemed closed and terminated."
NOW, There still remained the matter of Nolasco's appeal from the
decision of Arbiter Lasquite. The National Labor Relations Commission
overruled the Lasquite decision which held that Nolasco's complaint
was barred by res judicata and remanded the case back to the
arbiter "for further appropriate proceedings."
Once again MAI had to apply for relief against an adverse ruling. It
pointed out inter alia that: (1) Nolasco's appeal from the decision of
Arbiter Lasquite adjudging his second action to be barred by res
judicata was out of time and should have been dismissed, citing VirJen Shipping & Marina Services, Inc. v. NLRC, 115 SCRA 347, 361; (2) in
any case, Lasquite was quite correct in ruling that res judicata does
exist; (3) there are two contradictory resolutions dealing with the same
matter; and (4) the amount of back salaries which it (MAI) had thus far
been compelled to pay more than satisfies the total amount due
Nolasco.
38 MAI's motions were denied by the Commission, by
Resolution dated January 7, 1986.
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ISSUE #1: In Ignoring Real Juridical Situation and Established Remedies
The NLRC was clearly wrong, and gravely abused its discretion, in
ignoring or failing to comprehend the self-evident fact that the matter
before it was, at bottom, nothing more than the failure or claimed
inability of an employer to comply with a final and executory judgment
for the reinstatement of an employee.
In this situation, the plain and obvious remedy was simply the
compulsion of the employer by writ of execution to effect the
mandated reinstatement and pay the amounts decreed in the
judgment, and disregard or overrule the employer's claim of inability to
reinstate the employee or, in the event that there be valid and
insuperable cause for such inability to reinstate, take account of this
factor in the process of directing and effectuating the award of relief to
the employee consistently with the judgment.
But, to repeat, the plain and obvious remedy is execution. The remedy
is certainly never the institution of a separate action, whether in the
regular courts or the Labor Arbiters' Branch. Such a recourse would be
violative of the well settled principle of res adjudicata, and would give
rise to that multiplicity of actions which the law abhors and exerts
every effort to eschew. Cdrep
Thus, even while Nolasco was prosecuting his new action, the public
respondents, with full knowledge thereof, authorized execution of the
original judgment. Worse yet, after that execution had resulted in the
coerced payment by MAI of the no mean sum of P239,850.00 to
Nolasco, and after Director Leogardo had declared that on account
thereof, "the judgment . . . should be . . . considered fully satisfied
and . . . (the case should be) deemed closed and terminated,"
respondent NLRC still refused to dismiss the second action and instead
directed the Arbiter to conduct "further appropriate proceedings" to
determine whether or not MAI was guilty of "causing the abolition (in
bad faith) of the complainant's position to render nugatory his
reinstatement under a final judgment" so as to render it liable for the
payment of additional damages in the claimed amount of
P1,539.837.00 as aforestated. 43 A more striking example of "having
one's cake and eating it, too," can hardly be conceived.
ISSUE #2
In Ignoring Tardiness of Nolasco's Appeal
So, too, it was clearly wrong, and in grave abuse of discretion, for the
Commission to fail or refuse to take account of the fact clearly
shown by the record and to which its attention had repeatedly been
drawn that the appeal taken by Nolasco from the decision of Arbiter
Lasquite of August 2, 1984, dismissing his complaint, was late,
because perfected on September 24, 1984, twelve (12) days after
service on him of notice of the decision on September 12, 1984, 44
the reglementary period for appeal being fixed by the Labor Code at
ten (10) days.
MAI's opposition to the appeal should have been sustained, and the
NLRC should never have taken cognizance of the appeal. In doing so,
and in resolving the appeal adversely to MAI, it acted so whimsically,
capriciously and arbitrarily as to call for this Court's correcting hand.
ISSUE #3
In Ignoring Event Rendering Reinstatement Moot
Rule 39
RULE 39 SEC 13
G.R. No. 58281. November 13, 1991.
DIONISIO GOMEZ, FE GOMEZ, JUAN GEALONE, LUZ GOMEZ, AQUINO
GUETA, DIONISIO GOMEZ, JR., LYDIA ANGELES, MILAGROS GOMEZ,
EMILIO T. TRAILGALGAL, CESAR GEALONE, AMADA GOMEZ, RICARDO
MANDANAS, ROSE GOMEZ, CONSOLACION ESPELA, NORMA GOMEZ, and
CORAZON GOMEZ, plaintiffs-appellees, vs. MARCELO GEALONE, LUCIA
G. ESBER, ZOILO ESBER, ODEN BONTIGAO, HONORATO BONTIGAO,
BENITO GEALONE, CESAR GEALONE, SEVERINO GERONA, TITO
GERMEDIA, AURELIO GOBRIS, NEMESIO FORTES, PONCIANO GOBRIS,
FLOSERFIDA GONA, and GORGONIO BONTIGAO, defendants-appellants.
FACTS:
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properties owned by the defendants, the auction sale, the
issuance of the certificate and final sale, the writ of delivery of
possession and consequent delivery of possession of the
properties"
ESBERS CONTENTIONS:
1
the real properties levied on execution and later sold in the
auction sale have prior and registered liens in favor of third
persons, and
2
the residential house and the land (on) which the building was
constructed is a family home or homestead exempt from
execution.
TC
"In the absence of express provision it has variously held that claim
[for exemption] must be made at the time of the levy if the debtor is
present, that it must be made within a reasonable time, or promptly, or
before the creditor has taken any step involving further costs, or before
advertisement of sale, or at any time before sale, or within a
Rule 39
reasonable time before the sale, or before the sale has commenced,
but as to the last there is contrary authority."
In the light of the facts above summarized, it is self-evident that
appellants did not assert their claim of exemption within a
reasonable time.
Certainly, reasonable time, for purposes of the law on
exemption, does not mean a time after the expiration of the
one-year period provided for ( to redeem) in Section 30 of Rule 39 of
the Rules of Court for judgment debtors to redeem the property sold on
execution, otherwise it would render nugatory final bills of sale
on execution and defeat the very purpose of execution to put
an end to litigation.
SC reiterated that that litigation must end and terminate sometime and
somewhere, and it is essential to an effective administration of justice
that, once a judgment has become final, the winning party be not,
through a mere subterfuge, deprived of the fruits of the verdict.
Sc ruled that claims for exemption from execution of properties
under Section 12 of Rule 39 of the Rules of Court must be
presented before its sale on execution by the sheriff.
"A judicial sale of real estate will not be set aside for inadequacy of
price unless the inadequacy be so great as to shock the conscience or
unless there be additional circumstances against its fairness."
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Rule 39
ISSUE: Whether the exemption in Art 1708 of the Civil Code applies to
petitioner
HELD: NO.
Article 1708 used the word "wages" and not "salary" in relation to "laborer"
when it declared what are to be exempted from attachment and execution. The
term "wages" as distinguished from "salary", applies to the compensation for
manual labor, skilled or unskilled, paid at stated times, and measured by the day,
week, month, or season, while "salary" denotes a higher degree of employment,
or a superior grade of services, and implies a position of office: by contrast, the
term wages " indicates considerable pay for a lower and less responsible
character of employment, while "salary" is suggestive of a larger and more
important service.
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against herein petitioner, which personal properties are the
licensed firearms in question.
"(a) Except in paragraphs (j) and (m), Sec. 12, Rule 39, Rules of
Court, the exemptions are accorded to individual debtors.
(c) The properties are necessary for the livelihood of the debtor
and his family." (Rollo, p. 58)
ISSUE:
WON there is grave abuse of discretion on the part of the NLRC in
upholding the sheriff's issuance of Notice of Levy and Sale on
Execution against licensed firearms owned and used by the petitioner,
a security agency, in its operations.
HELD: NO
10 "Sec. 12. Property exempt from execution. Except as otherwise expressly provided
by law, the following property, and no other, shall be exempt from execution:'(b) Tools and
implements necessarily used by him in his trade or employment;'"
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Rule 39
ALFONSO ESCOVILLA, JR., CECILIO M. MERIS and CUISON ENGINEERING
and MACHINERY CO., INC., petitioners, vs. THE HON. COURT OF APPEALS,
SIBAGAT TIMBER CORPORATION and CONCHITA DEL ROSARIO,
respondents.
FACTS:
A third party claim over said item was filed by Mariano Rana office
manager of Sibagat Timber Corporation, one of the private
respondents.
Consequently, a sheriff's indemnity bond filed for the third party claim
of Conchita del Rosario was approved by the Davao Court.
Pursuant to such order, Escovilla took custody of the motor launch and
set the auction sale on March 27, 1985.
Despite the orders of the court directing the Sheriff to return the motor
launch and to desist from proceeding with the auction sale, the
auction sale was conducted upon motion of Cuison Engineering
and Machinery Co., Inc. and upon order of Judge Saludares in
Civil Case No. 13699.
On March 27, 1985, the subject motor launch was sold at public
auction by Deputy Sheriff Joseymour R. Robiza in lieu of Escovilla who
was then in Gen. Santos City, South Cotabato.
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HELD:
There is no dispute that the private respondents are indeed the actual
owners of the subject properties by virtue of a sale in their favor by Del
Rosario and Sons Logging Enterprises, Inc.
o
As the Court stated in Bayer Philippines, Inc. v. Agana, (63 SCRA 355
[1975] ):
o
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The rule is clear. If a third party claim is filed, the sheriff is not
bound to proceed with the levy of the property unless he is
given by the judgment creditor an indemnity bond against the
claim.
o
The Court also take note of the trial court's finding that Sheriffs
Escovilla and Meris misled the Davao court as to the ownership of the
properties they had seized knowing quite well that the petitioners in
the prohibition case, were the actual owners of the property. This
brings us to the other point raised in this petition.
Corollary to the main issue raised is the argument that the Regional
Trial Court of Butuan City cannot restrain or interfere with the orders
issued by the Regional Trial Court of Davao City which is its coordinate
and co-equal authority on matters properly brought before it. This issue
has been clearly settled in the case of Traders Royal Bank v.
Intermediate Appellate Court, (133 SCRA 141 [1984] ) where the Court
held:
o