Imperial Insurance v. Delos Angeles (G.R. No. L -28030, -28030, January 18, 1982) Fernandez, J. FACTS:
Private respondents are the plaintiffs in 2 se parate cases where they obtained a w rit of preliminary attachment and, accordingly, levied upon all the properties of the defendant, Felicisimo V. Reyes. For the dissolution of the said attachments, The Imperial Insurance, Inc., as surety, and F elicisimo, as principal, posted a bond of P60,000.00 in one case and P40,000.00 in another. Both cases were tr ied jointly and a decision was rendered in favor of the plaintiffs. The records of the cases were remanded to the CFI-Quezon, for execution of judgment. The lower Court, presided by Judge Delos Angeles, issued the writs of execution of judgment in said cases. The Provincial Sheriff of Bulacan returned the w rits of execution' unsatisfied in whole or in part'. Private respondents filed a 'motion for recovery on the surety bonds'. Thereafter, said private respondents, thru counsel, sent a letter of o f demand upon petitioner asking the latter to pay them the accounts on the counterbonds. Respondent Judge, in his order, rendered judgment against the counter-bonds. Petitioner filed a petition for certiorari with prayer for for preliminary injunction with the Court o f Appeals to restrain the enforcement of the writ of execution. During the pendency of the case, the defendant, Felicisimo died. He was duly substituted by his surviving spouse, Emilia T. David, an administratrix of his intestate estate.
ISSUE: W/N the CA erred erre d in holding that Judge Delos Angeles could legally issue the writ of execution against the petitioner as surety in a counterbond (bond to dissolve attachment) on the basis of an ex-parte motion for execution which was neither served upon the surety nor set for hearing. NO. W/N the counterbonds given by the defendant Felicisimo and its surety, The Imperial Insurance, should me made liable after the execution was returned unsatisfied. YES. HELD:
Although the counterbond contemplated in the aforequoted Sec. 17 , Rule 57, of the Rules of Court is an ordinary guaranty where the sureties assume a subsidiary liability, the rule cannot apply to a counterbond where the surety bound itself "jointly and severally" (in solidum) with the defendant as in the present case. The Imperial Insurance, Inc. had bound itself solidarily with the principal, the deceased defendant Felicisimo V. Reyes. In accordance with Article 2059, par. 2 of the CC of the Phil., excussion (previous exhaustion of the property of the debtor) shall not take place "if he (the guarantor) has bound himself solidarily with the debtor." The judgment having been rendered against the defendant, Felicisimo V. Reyes, the counter-bonds given by him and the surety, The Imperial Insurance, Inc., under Sec. 12, Rule 57 are made liable after execution was returned unsatisfied. Under the said rule, a demand shall be made upon t he surety to pay the plaintiff the amount due on the judgment, and if no payment is so made, the amount may be recovere d from such surety after notice and hearing in the same action. A separate se parate action against the sureties is not necessary. In the present case, the demand upon the petitioner surety was m ade with due notice and hearing thereon when the private respondents filed the motion for recovery on the surety bonds. Therefore, all the requisites under Sec. 17, Rule 57, being present, namely: (1) the writ of execution must be returned unsatisfied, in whole or in part; (2) t he plaintiff must demand the amount due under the judgment from the surety or sureties, and (3) notice and hearing of such demand although in a summary manner, complied with, the liability of the petitioner automatically attaches. As a solidary guarantor, the petitioner, pet itioner, the Imperial Insurance, Inc., is liable to pay the amount due on such counter-bonds should the creditors, private respondents herein, choose to go directly after it.
