Towers Assurance vs. Ororama Supermart

TOWERS ASSURANCE CORPORATION  vs. ORORAMA SUPERMART Case: liability liability of a surety in a counterbond counterbond for the lifting lifting of a rit of !reli"inary attach"ent

#ACTS$ See #ACTS$ 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 P5,!"" plus litigation e#penses and attorney$s fees %Ci&il Case 'o( !)*"+( He ased for a -rit of preliminary attachment and the lo-er court issued an order of attachment( .he deputy sheri/ attached the properties of the Ong spouses in 0alencia, 1uidnon and in Cagayan de Oro City(  .o  .o lift the attachment, the Ong spouses 2led a counter3ond in the amount of P5,!" P5,!"" " -ith -ith .o-ers o-ers 4ssura 4ssurance nce Corpor Corporati ation on as surety surety( In that that undertaing, the Ong spouses and .o-ers 4ssurance Corporation bound the"sel%es to !ay solidarily to solidarily  to See Hong the sum of P5,!""( Ong Spouses failed to appearduring pretrial, they -ere declared in default(  .he lo-er court ordered the spouse and the surety to pay solidarily See Hong Hong the sum of P5,!" P5,!"" " plus plus P6","" P6",""" " as litigat litigation ion e#pen e#penses ses and and attorney$s fees( Ernest nesto o Ong man manifes ifeste ted d that that he did did not -an -ant to ap pp pea eal( l( Ororama Supermart 2led a motion for e#ecution( It -as granted 3y the lo-er court( .he -rit of e#ecution -as issued against the 7udgment de3tors and their surety surety(( .he, .o-ers 4ssurance 4ssurance Corporati Corporation on 2led the instant instant petition for certiorari -here it assails the decision and -rit of e#ecution( ISSUE$ WON surety is liable liable absence of shoing that it as gi%en o!!ortunity to be heard& 'E()$

8o-er 8o-er court acted acted -ith -ith gra&e gra&e a3use a3use of discre discretio tion n in issuin issuing g a -rit -rit of  e#ecution against the surety -ithout 2rst gi&ing it an opportunity to 3e heard as re9uired in ule 5; of the ules of Court -hich pro&ides: nder section 6;* 6; * in order that the +udg"ent creditor "ight reco%er fro" fro" the surety on the counterbo counterbond* nd* it is necessary necessary ,-.  that e#ecu e#ecutio tion n 3e 2rst 2rst issued issued agains againstt the princi principal pal de3to de3torr and that that such such e#ecution e#ecution -as returned unsatis2ed in -hole or in part? ,/. that the the creditor creditor made a demand upon the surety for the satisfaction of the 7udgment, and ,0. that the surety surety 3e gi&en notice notice and a summary hearing hearing in the same action as to his li a3ility for the 7udgment under his counter3ond(  .he 2rst re9uisite mentioned a3o&e is not applica3le to this case 3ecause .o-ers 4ssurance Corporation assumed a solidary lia3ility for the sati satisf sfac actio tion n of the the 7udg 7udgme ment nt(( A sure surety ty is not not enti entitl tled ed to the the e1haustion of the !ro!erties of the !rinci!al debtor ,Art& /232. 1ut certainly, the surety is entitled to be* heard before an e1ecution can be issued against hi" since he is not a !arty in the case in%ol%ing his !rinci !rinci!al !al&&  .he -rit of is set aside( .he lo-er court is directed to conduct a summary hearing on the surety$s lia3ility on its counter3ond( 'o costs(