G.R. No. L-3694; May 23, 1951
LIBERTY CONSTRUCTION SUPPLY CO., petitioner, vs. HON. POTENCIANO PECSON, as Judge of the Court of First Instance of Manila and ALTO SUPPLY SURETY AND INSURANCE CO., INC., respondents.

FACTS

In Civil Case No. 8266 of the Court of First Instance of Manila, plaintiff Fernando Quema filed a complaint for recovery of possession of 400 black iron pipes against defendants Jaime Castro alias Jaime Rodriguez Tinio, Benjamin Layug, and Liberty Construction Supply Company. To secure immediate possession of the pipes, Quema filed a bond with Alto Surety and Insurance Co., Inc. as surety. The court ordered the sheriff to take possession of the pipes, but possession was returned to Liberty Construction Supply Co. after it filed a re-delivery bond. Liberty Construction filed an answer denying the allegations and a counterclaim for damages of P1,366.55 against plaintiff Quema for its malicious inclusion in the suit and the unjustified seizure. On September 1, 1949, the court rendered judgment dismissing Quema’s complaint and ordering him to pay Liberty Construction the sum of P1,366.55 with interest. After the judgment became final, a writ of execution was issued against Quema but returned unsatisfied due to his insolvency. Liberty Construction then moved for an alias writ of execution against the surety, Alto Surety. The judge initially granted the motion but, upon reconsideration by the surety, set aside the alias writ, holding it was issued without jurisdiction because Liberty Construction failed to file its claim for damages in accordance with Sections 10 of Rule 62 and 20 of Rule 59 of the Rules of Court (i.e., without due notice to the surety). Liberty Construction’s motion for reconsideration was denied, prompting this mandamus action to compel the judge to order execution against the surety.

ISSUE

Whether the judgment for damages against the plaintiff (principal on the bond) can be executed against the surety (Alto Surety and Insurance Co., Inc.) even though the surety was not notified of nor included as a defendant in the counterclaim for damages filed by Liberty Construction Supply Co.

RULING

The petition for mandamus is denied. The respondent judge acted in accordance with law in refusing to order execution of the judgment against the surety. The Supreme Court, abandoning its earlier ruling in Florentino vs. Domadag and following the later case of Visayan Surety and Insurance Corp. vs. Pascual et al., held that for damages resulting from the seizure of personal property (the payment of which is secured by a judicial bond) to be enforceable against the surety, the claim for such damages must be ascertained in the same action with due notice to the surety. If the surety is given due notice, it is bound by the judgment against the principal and a writ of execution may issue against it. If no such notice is given, the judgment cannot be executed against the surety without affording it an opportunity to present defenses which the principal might not have previously set up. Since Liberty Construction did not file its claim for damages with due notice to the surety as required by the rules, the judgment could not be executed directly against Alto Surety and Insurance Co., Inc.