G.R. No. L-10105; March 31, 1915
RAFAEL MOLINA SALVADOR, plaintiff-appellant, vs. ENRIQUE F. SOMES, defendant-appellee.

FACTS:
Rafael Molina Salvador and Enrique F. Somes each held judgments against a common debtor, De la Riva. A prior case (Somes v. Molina, 15 Phil. Rep., 133) established that there was no inherent preference between their judgments. However, Molina had levied on specific property of De la Riva. Somes, by subrogation, claimed a right to share in the proceeds of that property. While Molina’s appeal regarding the priority of their claims was pending, he voluntarily released his levy on De la Riva’s property, and the property was returned to De la Riva. Subsequently, Somes levied on the same property under his own judgment, sold it at execution, and received the proceeds. Molina did not intervene in Somes’ execution proceedings or assert any claim to the proceeds at that time. After Molina’s appeal succeeded in establishing his priority, he found the property had already been sold and the proceeds paid to Somes. Molina then filed this action against Somes, seeking restitution of the property or its value.

ISSUE:
Whether Molina is entitled to restitution from Somes for the property of De la Riva that Somes levied upon and sold during the pendency of Molina’s appeal, after Molina had voluntarily released his own levy on that property.

RULING:
No. The Supreme Court affirmed the dismissal of Molina’s complaint. The per curiam decision affirmed the judgment of the Court of First Instance without an extended opinion, citing the need for prompt dispatch. Justice Moreland, in a concurring opinion, elaborated that the action for restitution could not be maintained. Restitution is a remedy to restore to an appellant a specific thing or its equivalent of which he was deprived by enforcement of a judgment during appeal. Here, Molina never owned the property; it belonged to De la Riva. Molina’s release of his levy was voluntary and not compelled by Somes or the court. Once released, the property was De la Riva’s free asset, which he could legally apply to pay his debt to Somes. Somes committed no wrong against Molina by levying on property in which Molina, at the time, had no existing interest or lien. Molina’s failure to intervene in Somes’ execution proceedings or to present his claim of preference to the sheriff at the time of sale constituted a waiver of his right. The prior litigation between them presupposed that Molina’s levy was maintained; once the levy was released, the controversy became moot as there were no longer proceeds in which to assert a preference. Therefore, no cause of action for restitution lies against Somes.