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[ GR No. 25445, Nov 12, 1926 ]



49 Phil. 563

[ G. R. No. 25445, November 12, 1926 ]




The plaintiff seeks to recover  of the defendants the payment of P2,113.17,  the amount of  the  writ of execution issued in his  favor, which  he could not  enforce because the defendants unjustifiedly released the attached property of the judgment  debtor  Santa  Singh, plus the amount of P1,000 for  expenses incurred by the plaintiff by reason of his stay in  Samar on the occasion  of the enforcement of the execution which  was not carried out.

The defendants Provincial Sheriff Juan Sulse and Deputy Sheriff  Bernardo Arteche filed their answers praying, for the reasons stated, first, that the case be dismissed with  costs against the plaintiff, and, second, that they be absolved from the complaint with the costs against the plaintiff.

The other  defendant  Francisco  D. Colinares was declared in default for not having appeared, notwithstanding the fact that he was duly summoned.

The lower  court rendered judgment ordering  the defendant to pay the plaintiff M. Singh,  jointly and severally, the sum of  P4,467.24 by way  of damages, with legal interest from the date of the judgment, October 31, 1925, and the  costs.

Of the two defendants Juan Sulse and Bernardo  Arteche, only the latter appealed, and his counsel now alleges that the lower court erred:  (a)  In not absolving the defendant Arteche from the complaint,  he being not legally responsible  for  the due compliance with a writ of execution inasmuch as he is a mere deputy sheriff, but the provincial  sheriff to whom  the said orders  were directed; (b)  in not absolving the defendant Arteche inasmuch as: (1)  His intervention in the proceeding in regard to the two executions was fully in accordance with the law  and his sound discretion; (2)  of the plaintiff's  sureties named to indemnify the intervenors, some withdrew their bonds while others were  delinquent and  insolvent,  and  (c)  in sentencing the defendant  Arteche to  pay, jointly and severally, the amount of P4,467.24 as damages.

The facts established  by the  evidence are stated by the Honorable Vicente Nepomuceno, who tried the case, in the following manner:
"On June 20,  1924, the Court of First Instance of Manila issued  a writ of execution  (Exhibit A)  upon  the judgment rendered in  civil case No. 20222,  entitled M. Singh vs. J. R. Sarda and Santa Singh, for the amount of P2,171.62 which writ of execution was delivered  by M. Singh to  D. Juan Sulse,  provincial sheriff of Samar,  to whom it was directed and which was later transmitted to his deputy in Basey, Mr.  Francisco D. Colinares who, on July 9, 1924 complying with said writ, attached the property set forth  in Exhibit  B,  which is the list of Santa Singh's property attached,  issued, certified and signed by said Francisco  Colinares.  According to this  list,  some lumber and 25  carabaos were attached.

" "On July 12,  1924, it was announced (Exhibit C)  that on the 17th of that month the property seized from Santa Singh, which is set forth in the list Exhibit B, would be sold at public auction.

"On July 12 and 16, 1924, Marcelo Abesamis, Luis Chapman, Buta Singh, Roman Echegurin, Bruno Echegurin and Miguel Salangue filed third party claims, asserting title to the lumber and carabaos attached by  Colinares and set forth in Exhibit B.  (See Exhibits F, G, H, I, J, K, L, and LL.)   Marcelo  Abesamis was the one who claimed the carabaos, alleging in his claim Exhibit H that the same had been transferred to him on January 29, 1924.

"Mr. Francisco Colinares, in his letters (Exhibits D and E)  addressed to Mr. M. Singh on July 15  and 16,  1924, informed the latter of the third party claims of Abesamis and  Chapman,  advising him to file an indemnity bond in his favor,  otherwise the property  levied  upon would be released and returned  to  the  claimants.  Due to  these claims the sale at public auction  announced in  Exhibit  C was postponed.

"As  a result  of Mr. Colinares' warning, Mr. M. Singh complied with  the conditions required of him  by having Mariano Cordero and, Antonio Abad execute a bond (Exhibit 10) in favor of deputy sheriff Francisco Colinares who, on July 17, 1924, in a letter (Exhibit M) addressed to Mr. M.  Singh,  stated that he had received  and approved the bond which was sent to him.

"Notwithstanding  the  approval of the bond (Exhibit 10)  by deputy  sheriff Colinares,  on July 18, 1924 he addressed a letter (Exhibit 0)  to  M. Singh informing him that the sureties Mariano Cordero and Antonio Abad had withdrawn the  bond executed by them the day before and warning him that if he  did not file a new indemnity bond by the 21st of said month, the property would be released from  attachment.  The letter of the sureties Cordero and Abad withdrawing their bond is dated July 18, 1924 and is marked Exhibits N and 11,

"Mr, M. Singh complied with the conditions required of him and on July 18, 1924, the sureties Lucio Go-Juaco and Ruperto Abelino executed a new bond (Exhibit 12) in favor of Mr. Colinares, as deputy isheriff, which bond was received, accepted and approved by him, according to his  certificate Exhibit P issued on July 19, 1924.

"On July  28, 1924, however, deputy sheriff  Colinares wrote a letter (Exhibit 15)  to Mr.  M. Singh to  the effect that Lucio Fernando  Go-Juaco being delinquent, the bond was disapproved.   (See Exhibits 13 and 14.)  In view of this, new bonds in the amount of f*7,500 were executed on August 6, 1924 by Elias Andrade  and Isaac Aquino, and Ruperto Avelino and Placido Enerlan in favor of the said deputy sheriff, marked Exhibits S and  T and accompanied by certificates, Exhibits W, X and Z, which  show that the sureties Placido Enerlan, Elias Andrade and Isaac Aquino were  not delinquent in the payment of taxes on  the property on that date.

"According to the announcements, Exhibits 3 and 4, the public auction sale of the attached property was  postponed to August 14th and was again postponed to August 16, 1924.

"The bonds  (Exhibits S and T, marked  also 18 and 20) were delivered by Mr. M. Singh to deputy sheriff Bernardo Arteche at Tacloban on August 14, 1924 and transmitted by him to the deputy  sheriff Colinares  at Basey, according to the letter (Exhibit A A) addressed by Arteche to Mr. Singh on the 15th of the  same month.  At the foot of said letter there appears a note by said deputy sheriff Arteche which reads: 'You may leave this case and take care of your family in Manila who, according to a  telegram,  are sick"
This was on August 15th, just prior to the date fixed in the announcement of the sale (Exhibit 3).
  "Mr.  M. Singh relying upon the statement of deputy- sheriff Arteche and the certificates (Exhibits U, X and Z), left Tacloban for Manila; but while in  this  city he received a telegram (Exhibit BB) from the provincial sheriff of Samar at Catbalogan, dated August 21,1924, which read: 'Execution against Santa Singh not  levied.  Two of your sureties withdrew and  the other two are insolvent."  Two facts  may be noted in  this telegram, to wit: (a) That it was sent on August 21st, or five days after the date fixed for the sale at public auction  (Exhibit 3), and  (b) that no time was fixed within which the plaintiff might file another indemnity bond.  The  defendants presented Exhibits  16, 17 and 19, which bear the dates of August 15 and 16, 1924, but it appears that although Exhibit 19 is  dated August 16th,  it was ratified by Andrade and  Aquino on September 10, 1925.

"On August 22, 1924, that  is, immediately after Mr. M. Singh received the telegram  (Exhibit BB), his attorney sent  a telegram (Exhibit GG) to the provincial sheriff of Samar at  Catbalogan, reading as follows:

" 'Wish  to inform you of following irregularities deputy sheriff Basey.  After requiring my client Singh to file indemnity bonds four times and approving same he  suspended  execution  alleging withdrawal  of sureties.   Call your attention once obligation ratified sureties cannot withdraw it civil cases. I accuse deputy sheriff having understanding  with  judgment  debtors.   Request   immediate action ordering sale public auction.  Request answer.'

"Not having received an answer to the telegram Exhibit GG,  Attorney Sotto, who represented Mr. M. Singh, on August 26, 1924  sent another telegram, (Exhibit  GG-1) to the Governor and Sheriff ex-oficio  at Catbalogan, Samar reading as follows:

"'Request definite action prevent deputy sheriff Basey releasing property attached Singh case"                 ;.

"On August 27,1924, the provincial sheriff of Samar answered Attorney Sotto by telegram  (Exhibit  GG-2), as follows:

" 'Indemnity bond filed judgment creditor not yet approved sheriff because  sureties not solvent whose property have encumbrances.  New bond  necessary to my satisfaction"                                                .

"On the same day, that is on August 27,  1924, Attorney Sotto sent another telegram (Exhibit GG-3), which read:

"'Request you  reduce four thousand bond.  Will send affidavit of solvency together  with assessment by mail.  If you desire other  requirements advise us.  We await answer"

"As day after day passed without having received a reply Attorney Sotto, on September 2, 1924, sent another telegram (Exhibit GG-4), to the provincial sheriff of  SamaiV which  read: . " 'Request answer last telegram asking reduction of bond and other information.  Request prevent release of property attached"

"On-September 3, 1924, the provincial sheriff of Samar wired Attorney Sotto (Exhibit GG-5) as follows:

" 'Am awaiting information Basey as to amount of property attached to decide your petition"

"On September 18,  1924, Attorney Sotto sent another telegram (Exhibit GG-6) to  the governor  and provincial sheriff of Samar which literally read:

" 'Please fix amount and other  conditions  of bond to definitely levy execution  Singh.  We request  your intervention to prevent release of property  attached  by  sheriff Basey"

"The following day,  that is on September 19, 1924, the said provincial sheriff  wired  (Exhibit GG-7  and Exhibit HH) Attorney Sotto as follows:

" 'Special deputy  left for Basey to  prevent  release of property attached and when he returns I will send amount and  other conditions of bond' by mail/

"On October 9, 1924, Attorney Vicente Sotto  sent a telegram to the provincial sheriff of Samar (Exhibit GG-8) reading:

"'We  have not received as yet letter promised as to amount and other conditions of indemnity bond Singh case notwithstanding a month has elapsed.   Request  immediate definite action."

"Later, the attorney  for Mr. Singh  received a letter, (Exhibit CC) from governor and provincial sheriff Juan Sulse, ;dated Catbalogan, Samar, October 14th, which read as follows:

"'Third  party claims were duly presented to the provincial sheriff on the pieces of lumber upon which execution was  levied by the special deputy sheriff of  Basey, Samar, by virtue of the writ of execution issued by the Court of First Instance of Manila in civil case No. 20222, M. Singh, plaintiff, m J. R. Sarda and Santa Singh, defendants,  and for the protection of the sheriff and in order to sell them at public auction, the amount of the  bond,  as security, is hereby fixed at six thousand pesos (P6,000) in cash or its equivalent in a collectable  check to be deposited in a duly accredited bank to avoid delay in case  of indemnity"

"In view of this requirement  of provincial sheriff Juan Sulse, on.. October 25, 1924, Attorney Sotto sent  him a  telegram  (Exhibit GG-9)  requesting reconsideration of  the letter (Exhibit CC)  in the sense that, instead  of  a cash bond or a check that might be easily: collected, a personal bond for the amount of P6,000 be accepted.

"No  answer haying been received, on  November 4, 1924, Attorney Sotto  sent another telegram (Exhibit GG-10) to the. governor and provincial sheriff of Samar making  the following request:

"'Request you  take action immediately on petition set forth in previous  telegram offering personal bond in Singh case."

"On November 5,  1924, the provincial sheriff of Saniar sent Attorney  Vicente Sotto the following telegram (Exhibit GG-11) :

"'Accept personal bond for  six  thousand pesos with solvent sureties whose property must be free from all liens and encumbrances"

"As required by this telegram, the herein plaintiff M. Singh on November 13, 1924, gave an indemnity  bond (Exhibit DD)  in the  City of Manila for the amount  of P6,000 in favor of the provincial sheriff of  Samar.  The bond referred  to  (Exhibit DD) was received and approved by the sheriff  of  Samar, Mr. Juan  Sulse."
Commenting on the above statement of facts, the judge of the lower court says:
"As will be seen,  Mr. M. Singh  and his  attorney, Mr. Sotto, did everything that was necessary to carry out the writ of execution, but all their efforts were in  vain, because the herein defendants did nothing from that time until this date towards carrying out and duly enforcing said writ  of execution, it positively appearing that all of the property levied upon by virtue of the writ of execution issued on June 20, 1924  had disappeared.   (Exhibits A and B.)

"The judgment creditor M. Singh  not desiring that there should be any  pretext and  to. avoid delay in  carrying out the execution,  on August 18, 1924,  that is, before the expiration  of sixty days provided by law, secured another writ of attachment  (Exhibit JJ), which was received  in due time.   This second writ was unnecessary for the reason that the first writ had already been  complied  with and his act in securing it is the best proof that Mr.  M. Singh had not been negligent and that he devoted all of his attention and exerted all his efforts towards  carrying  out the writ of execution.

"Deputy sheriff Bernardo Arteche admits having attached the property found in the forest belonging to Santa Singh consisting of lumber of the approximate value of P4,000, but said lumber has not been sold, neither has its sale been announced nor does he  knew where it can be found.  The excuse given by deputy sheriff Arteche for this irregularity is that, according to him, Mr. Singh has neither paid the sheriff's fees nor has he appeared in that place to attend the public auction sale. Mr.  Arteche says that Mr. Juan Sulse wrote a letter (Exhibit 24)  to  Mr. Singh regarding this  matter.   Mr. Singh denies haying received  the original  of Exhibit 24 and the court believes that it really  was never sent to Mr.  Singh, and the auction sale could not be held for the simple reason that no date was fixed for the sale, nor was  the announcement of the sale at public auction advertised.  And as  to  the sheriff's fees  for that execution, Exhibit N contradicts Arteche and his codefendants.

"The excuse now given by  the  defendants  m regard to the disappearance of the lumber first attached (Exhibit B) is that, because of the third party claims and the failure to file a bond with solvent sureties, said lumber was released from attachment.   But, in the opinion of the  court, this is a mere  pretext without any foundation, because,; if it were true that the said lumber in Exhibit B had been released from attachment the provincial sheriff would  not have required the filing of a bond for P6,000 as per  his telegram (Exhibit GP-11), nor would he have accepted and approved the bond Exhibit DD.  These telegrams and bond are dated November 5 and 13, 1924, respectively, and it is to be presumed that on said dates the property set forth in Exhibit B had not yet been released from the attachment.

"The plaintiff Mr. M. Singh says that the public auction sale of the attached property belonging to Santa Singh was carried out  because the herein defendant conspired with the sureties.   The plaintiff, Mr. M. Singh,  could hot; as is natural, present direct evidence of the alleged conspiracy of the defendants with the judgment debtors and the sureties, but there is  sufficient circumstantial  evidence to establish the existence of a conspiracy or,  at least, bad faith on the part of the defendant-sheriffs, for the following reasons:

"Juan Sulse and his deputies Bernardo Arteche and Francisco  Colinares now pretend and  state in Exhibits 22 and 24 that the 25 carabaos  were not  attached by virtue of the first writ of execution; but this is untrue as these carabaos appear among the attached property in Exhibit B, the words "25 carabaos"  in said document  having  been written  and initialed by Francisco Colinares; and it furthermore appears in Exhibit H that said  carabaos  were claimed by Marcelo Abesamis who  alleged that they had been transferred to him by Santa Singh on January 29, 1920, from which date he has had them in  his  possession, which is another falsehood because, according to  the  certificate of the deputy treasurer (Exhibit EE), said carabaos were transferred to  Marcelo  Abesamis by Santa Singh on July 14, 1924, that is, after they had  been attached.

"Here it is seen that  the defendants lied in stating that the carabaos were not attached,  when it can logically be deduced from the documents  mentioned, Exhibits  B and H that they were attached and later claimed by  Abesamis,. pretending to be the owner by virtue  of the supposed said transfer evidenced by Exhibit EE."
And the trial judge concludes:
"There is no doubt that the failure to carry out the writ of execution  of the judgment rendered  in civil  case No. 20222 of the Court of First Instance of Manila was  due to the conspiracy between the defendant-sheriffs and Santa Singh in connivance with the sureties and other persons; that the reproachable  conduct of the judicial functionaries Sulse, Colinares and Arteche has caused considerable damage to Mr. M. Singh; that the gross amount of the damages consists of the following sums: The amount of the writ of execution, Exhibit A, which is P1,871.74, P1,455.62 plus. P500, plus P216.12, minus P300);  the  amount of P12.50 which Mr. M. Singh paid on account of sheriff's fees; the amount of P135 for freight on the launch which transported the property set forth in Exhibit B; the amount of P200 for trips made by the plaintiff between Tacloban, Calbayog and Catbalogan and vice versa to take  the defendant Arteche to Basey, Samar; the amount of P1,400 for premiums on the various bonds  which were required of the plaintiff; the  sum  of P800  for plaintiff's Attorney's fees in  the present case,  plus P48 the cost  of  the  various telegrams sent by the plaintiff  and his attorney in  connection  with the writ of execution (see Exhibit FF composed of various receipts), total P4,467.24.

"It is indisputable  that the  deputies  Colinares and Areche are liable for their illegal acts and that the provincial sheriff Mr. Sulse is liable jointly and severally, with his deputies for his acts and for those of his deputies."
We have reviewed the record before us and find that the assignments of error by the appellant are groundless.   We are of the opinion that the finding of facts arrived at by the lower court is duly supported by the  evidence, and that the judgment appealed from is in accordance  with law.

The appellant alleges that as a mere deputy sheriff he is not liable for the enforcement of the writs of execution which were directed to the provincial sheriff.  This allegation is untenable.  Although, under the rule that the official default  of a deputy is chargeable to the sheriff, an action is properly brought against the sheriff for such default yet an action may be brought  against the sheriff and his deputy for active malfeasance  of said deputy, such action being against him as  a wrongdoer and not in his capacity as deputy.  (35 Gyc, 1788,) And this rule is applicable to the case at bar because, according to the evidence, the appellant, by his actions and omissions as held by the lower court, contributed in a certain degree to the non-enforcement of the writ of execution to the prejudice of the judgment creditor-appellee.

We find no merit in  the assignments of error of  the  appellant and for this reason  the judgment  appealed  from must be, as it is hereby, affirmed,  with the costs  against the appellant.   So ordered.

Avanceña,  C.  J.,  Johnson, Street, Malcolm,  Ostrand, Johns, Romualdez, and Villa-Real,  JJ., concur.