GR 20144; (March, 1923) (Digest)
G.R. No. 20144; March 2, 1923
UNION GUARANTEE CO., LTD., petitioner, vs. HONORABLE S. DEL ROSARIO, Judge of First Instance of Manila, RICARDO SUMMERS, ex-officio sheriff of Manila, and LIM HONG WAN, respondents.
FACTS
In a replevin case (Civil Case No. 18074), Enrique Legarda Koh, as plaintiff, filed a bond with Union Guarantee Co., Ltd. as surety, to indemnify the sheriff against any claim by a third party (Lim Hong Wan, the intervenor) regarding the seized automobile, pursuant to Section 270 of the Code of Civil Procedure. The court rendered judgment in favor of Koh but ordered him to pay Lim Hong Wan P1,500. Upon Lim Hong Wan’s motion, the trial court issued a writ of execution to enforce this judgment directly against the property of the surety, Union Guarantee Co., Ltd., without the surety being made a party to the case or given a hearing. Union Guarantee Co., Ltd. filed this petition for prohibition to challenge the writ of execution.
ISSUE
Whether a writ of execution can be issued directly against the property of a surety on an indemnity bond given to a sheriff under Section 270 of the Code of Civil Procedure, based solely on a judgment against the principal, without the surety being made a party or given a hearing.
RULING
No. The writ of execution issued against the surety is void. First, the bond was executed to indemnify the sheriff against claims by a third party, not to answer directly to the third party for the judgment debt of the principal. The judgment was not against the sheriff, and no claim was made against him. Second, even if the bond were construed as creating an obligation to the third party, the surety cannot be subjected to execution on the judgment against the principal without being made a party and given an opportunity to be heard. There is no legal provision making such a surety a judgment debtor by virtue of the bond alone. A further judicial proceeding, with notice and hearing for the surety, is a prerequisite before execution can issue against it. The demurrer filed by the respondents is overruled.
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