G.R. No. L-45273; April 10, 1939
LUNETA MOTOR CO., plaintiff-appellant, vs. FEDERICO ABAD, defendant-appellee.

FACTS

Luneta Motor Co. filed a complaint to recover a sum of money based on promissory notes executed by Federico Abad. The court issued a writ of attachment on Abad’s property. Abad filed a counterbond to lift the attachment, with sureties binding themselves to redeliver the attached property or pay its value if plaintiff obtains a judgment. The court dissolved the writ. During the pendency of the case, Abad died. The trial court dismissed the case upon motion of Abad’s attorney.

ISSUE

Whether the trial court correctly dismissed the money claim against the deceased defendant despite the prior issuance of a writ of attachment and the filing of a counterbond.

RULING

Yes, the dismissal was correct. Under Section 119 of Act No. 190 (Code of Civil Procedure), an action for recovery of money pending against a deceased defendant must be dismissed. This rule applies even if a writ of attachment had been issued. Section 700 of the same Act expressly provides that pending money claims against a deceased shall be discontinued and any attached property shall be discharged from the attachment, with the claim to be presented before the committee on claims. The obligation of the sureties on the counterbond was conditional upon the plaintiff recovering a judgment. Since the law requires dismissal of the case, recovery of judgment became a legal impossibility. Under Article 1116 of the Civil Code, an obligation dependent upon an impossible condition is extinguished. The judgment of dismissal is affirmed.

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