G.R. No. L-45848 - NOVEMBER 1977 - PHILIPPINE JURISPRUDENCE CASE NUMBERCASE TITLE G.R. No. L-45848November 9,1977 Towers Assurance Corp. vs. Ororama Supermart G.R. No. L-27801November 17, 1977 Conrado D. Santos vs. Valeriano C. Bueno G.R. No. L-27170November 22, 1977 Eugene Moss vs. Director of Lands G.R. No. L-31654November 22, 1977 The People of the Philippines vs. Vicente Mahinay, et al. G.R. No. L-33123November 22, 1977 Dr. Deogracias Camon vs. Carlos Abiera, et al. G.R. No. L-45673November 22, 1977 Sps. Serapio San Diego, et al. vs. Hon. Nelly L. Romero Valdellon G.R. No. L-42885November 23, 1977 Leodegaria Bautista vs. Workmen's Compensation Commission G.R. No. L-46095November 23, 1977 Philippine Natonal Bank vs. Elias B. Asuncion A.M. No. 1517November 29, 1977 Maria Luz Atienza vs. Vicente Evangelista G.R. No. L-25891November 29, 1977 Benedicto M. Javier vs. Dominga Vda De Cruz G.R. No. L-26097November 29, 1977 Dominador Anucension vs. National Labor Union G.R. No. L-27448November 29, 1977 Province of Pangasinan vs. Reparations Commission G.R. No. L-29667November 29, 1977 The People of the Philippines vs. Esteban Yu, et al. G.R. No. L-30532November 29, 1977 Amer M. Balindong vs. Linang D. Mandangan G.R. No. L-31340November 29, 1977 Ruby H. Gardner vs. Court of Appeals G.R. No. L-37159November 29, 1977 Luisa Rivero vs. Court of Appeals G.R. No. L-37365November 29, 1977 Gaudencio Bicomong vs. Geronimo Almanza G.R. No. L-39478November 29, 1977 Faustina Cababarros De Nacalaban vs. Court of Appeals G.R. No. L-39546November 29, 1977 Progressive Development Corporation vs. Court of Industrial Relations G.R. No. L-40437November 29, 1977 Lourdes Guardacasa De Legaspi vs. Herminio A. Avendaño G.R. No. L-40691November 29, 1977 Rodolfo Monsale vs. Republic of the Philippines G.R. No. L-41769November 29, 1977 Luis De Vera vs. Workmen's Compensation Com. G.R. No. L-42418November 29, 1977 Mansueto D. Tenasas vs. Workmen's Compensation Com. G.R. No. L-43187November 29, 1977 Benito Robles vs. Workmen's Compensation Com. G.R. No. L-43653November 29, 1977 Radio Com. of the Philippines Inc. vs. Board of Com. G.R. No. L-43863November 29, 1977 Embee Transportation Corporation vs. Hospicio Camacho, et al. G.R. No. L-45533November 29, 1977 The People of the Philippines vs. Jesus D. Nazareno G.R. No. L-46703November 29, 1977 Tan Chuan Leong vs. Court of Appeals G.R. No. L-46890November 29, 1977 People of the Philippines vs. William T. Lim The Lawphil Project - Arellano Law Foundation, Inc. Towers Assurance Corp. vs. Ororama Supermart Conrado D. Santos vs. Valeriano C. Bueno Eugene Moss vs. Director of Lands The People of the Philippines vs. Vicente Mahinay, et al. Dr. Deogracias Camon vs. Carlos Abiera, et al. Sps. Serapio San Diego, et al. vs. Hon. Nelly L. Romero Valdellon Leodegaria Bautista vs. Workmen's Compensation Commission Philippine Natonal Bank vs. Elias B. Asuncion Maria Luz Atienza vs. Vicente Evangelista Benedicto M. Javier vs. Dominga Vda De Cruz Dominador Anucension vs. National Labor Union Province of Pangasinan vs. Reparations Commission The People of the Philippines vs. Esteban Yu, et al. Amer M. Balindong vs. Linang D. Mandangan Ruby H. Gardner vs. Court of Appeals Luisa Rivero vs. Court of Appeals Gaudencio Bicomong vs. Geronimo Almanza Faustina Cababarros De Nacalaban vs. Court of Appeals Progressive Development Corporation vs. Court of Industrial Relations Lourdes Guardacasa De Legaspi vs. Herminio A. Avendaño Rodolfo Monsale vs. Republic of the Philippines Luis De Vera vs. Workmen's Compensation Com. Mansueto D. Tenasas vs. Workmen's Compensation Com. Benito Robles vs. Workmen's Compensation Com. Radio Com. of the Philippines Inc. vs. Board of Com. Embee Transportation Corporation vs. Hospicio Camacho, et al. The People of the Philippines vs. Jesus D. Nazareno Tan Chuan Leong vs. Court of Appeals People of the Philippines vs. William T. Lim The Lawphil Project - Arellano Law Foundation, Inc.
Manila
SECOND DIVISION
G.R. No. L-45848 November 9,1977
TOWERS ASSURANCE CORPORATION,petitioner,
vs.
ORORAMA SUPERMART, ITS OWNER-PROPRIETOR, SEE HONG and JUDGE BENJAMIN K. GOROSPE, Presiding Judge, Court of First Instance of Misamis Oriental, Branch I,respondents.
Benjamin Tabique & Zosimo T. Vasalla for petitioner.
Rodrigo F. Lim, Jr. for private respondent.
AQUINO,J.:
This case is about the liability of a surety in a counterbond for the lifting of a writ of preliminary attachment.
On February 17, 1976 See Hong, the proprietor of Ororama Supermart in Cagayan de Oro City, sued the spouses Ernesto Ong and Conching Ong in the Court of First Instance of Misamis Oriental for the collection of the sum of P 58,400 plus litigation expenses and attorney's fees (Civil Case No. 4930).
See Hong asked for a writ of preliminary attachment. On March 5, 1976, the lower court issued an order of attachment. The deputy sheriff attached the properties of the Ong spouses in Valencia, Bukidnon and in Cagayan de Oro City.
To lift the attachment, the Ong spouses filed on March 11, 1976 a counterbond in 'the amount of P 58,400 with Towers Assurance Corporation as surety.ℒαwρhi৷In that undertaking, the Ong spouses and Towers Assurance Corporation bound themselves to pay solidarity to See Hong the sum of P 58,400.
On March 24, 1976 the Ong spouses filed an answer with a counterclaim. For non-appearance at the pre- trial, the Ong spouses were declared in default.
On October 25, 1976, the lower court rendered a decision, ordering not only the Ong spouses but also their surety, Towers Assurance Corporation, to pay solidarily to See Hong the sum of P 58,400. The court also ordered the Ong spouses to pay P 10,000 as litigation expenses and attorney's fees.
Ernesto Ong manifested that he did not want to appeal. On March 8, 1977, Ororama Supermart filed a motion for execution. The lower court granted that motion. The writ of execution was issued on March 14 against the judgment debtors and their surety. On March 29, 1977, Towers Assurance Corporation filed the instant petition for certiorari where it assails the decision and writ of execution.
We hold that the lower court acted with grave abuse of discretion in issuing a writ of execution against the surety without first giving it an opportunity to be heard as required in Rule 57 of tie Rules of Court which provides:
SEC. 17.When execution returned unsatisfied, recovery had upon bound.— If the execution be returned unsatisfied in whole or in part, the surety or sureties on any counterbound given pursuant to the provisions of this rule to secure the payment of the judgment shall become charged on such counterbound, and bound to pay to the judgment creditor upon demand, the amount due under the judgment, which amount may be recovered from such surety or suretiesafter notice and summary hearing in the same action.
Under section 17, in order that the judgment creditor might recover from the surety on the counterbond, it is necessary (1) that execution be first issued against the principal debtor and that such execution was returned unsatisfied in whole or in part; (2) that the creditor made a demand upon the surety for the satisfaction of the judgment, and (3) that the surety be given notice and a summary hearing in the same action as to his liability for the judgment under his counterbond.
The first requisite mentioned above is not applicable to this case because Towers Assurance Corporation assumed a solidary liability for the satisfaction of the judgment. A surety is not entitled to the exhaustion of the properties of the principal debtor (Art. 2959, Civil Code; Luzon Steel Corporation vs. Sia, L-26449, May 15, 1969, 28 SCRA 58, 63).
But certainly, the surety is entitled to be heard before an execution can be issued against him since he is not a party in the case involving his principal. Notice and hearing constitute the essence of procedural due process. (Martinez vs. Villacete 116 Phil. 326; Insurance & Surety Co., Inc. vs. Hon. Piccio, 105 Phil. 1192, 1200, Luzon Surety Co., Inc. vs. Beson, L-26865-66, January 30. 1970. 31 SCRA 313).
WHEREFORE,the order and writ of execution, insofar as they concern Towers Corporation, are set aside. The lower court is directed to conduct a summary hearing on the surety's liability on its counterbound. No costs.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio, Concepcion, Jr. and Santos, JJ., concur.