G.R. No. L-12271; January 31, 1959
JOSEPH ABELOW, plaintiff-appellee, vs. JOSE DE LA RIVA, ET AL., defendants. LUZON SURETY CO., INC., bondsman-appellant.

FACTS

In October 1950, Joseph Abelow filed a replevin action against Jose de la Riva and Gonzalo G. Padua to recover personal properties and damages. Abelow submitted the required affidavit and a “bond for manual delivery of personal property” under Rule 62, subscribed by Luzon Surety Co., Inc. The court issued an order for the seizure and delivery of the properties to Abelow. The complaint was later amended to include San Ildefonso Lumber Co. as an additional defendant, and an amended bond was also submitted and signed by Luzon Surety. However, about a month later, upon the submission of a counter-bond by the defendants, the order of seizure was lifted, and the sheriff returned the properties. The replevin case proceeded to trial, resulting in a judgment absolving the defendants and ordering plaintiff Abelow to pay San Ildefonso Lumber Co. the sum of P12,986.00 with interest for damages caused by the seizure, plus P1,500.00 as attorney’s fees. This judgment was affirmed by the Court of Appeals. After the record was remanded, a writ of execution was issued against Abelow but was returned unsatisfied as no leviable properties were found. The defendants then prayed for an alias writ of execution against Luzon Surety Co., Inc., the surety on the replevin bond. The surety objected, arguing that the final judgment contained no pronouncement against it, it had no notice of the claim before judgment became final, the court had lost jurisdiction to amend the final judgment to include an order against the surety, and under Rule 62, the defendants were barred from recovery due to their failure to submit a claim against the surety and give notice before the entry of final judgment. Despite these objections, the Manila court of first instance ordered execution against Luzon Surety.

ISSUE

Whether the court correctly issued an alias writ of execution against the surety, Luzon Surety Co., Inc., after the final judgment in the replevin case, despite the judgment containing no directive against the surety and the defendants’ failure to make a claim or notify the surety before the judgment became final.

RULING

No. The appealed order directing the issuance of an alias writ of execution against Luzon Surety Co., Inc. is revoked. The Supreme Court found the appeal meritorious. The procedure for enforcing a surety’s liability under a bond for the delivery of personal property is governed by Section 10, Rule 62 in connection with Section 20, Rule 59 of the Rules of Court. Applying these sections, the Court has repeatedly held that a surety may only be held liable if, before the judgment becomes final, an order against the surety is entered after a hearing with notice to said surety. After the judgment becomes final, it is too late to file such a claim with notification. In this case, the judgment under execution contained no directive for the surety to pay, and the defendants failed to make any claim against it or notify it before such judgment had become final. The appellees’ assertion that the surety had been “notified” referred to notification after the judgment had become final, not before its promulgation. The Court’s ruling in Florentino vs. Domagdag cited by appellees was abandoned in later adjudications, specifically in Visayan Surety and Liberty Construction Supply. The facts of this case are practically on all fours with Liberty Construction Co. vs. Pecson. Therefore, the order for execution against the surety was improper. Costs were awarded against the defendant-appellees.