G.R. No. L-7541; April 29, 1955
VISAYAN SURETY AND INSURANCE CORPORATION, petitioner, vs. ISAAC LACSON, CARMEN P. DE LACSON, The HONORABLE JUDGE EMILIO RILLORAZA AND THE SHERIFF OF PASAY CITY, respondents.

FACTS

In Civil Case No. 1313-P (Dy Kho vs. Isaac Lacson et al.), the respondent judge granted a preliminary injunction upon the filing of a P1,500 bond by Dy Kho as principal and the Visayan Surety and Insurance Corporation as surety. On November 8, 1952, the case was dismissed and the injunction dissolved. The Lacsons received notice of this order on November 10, 1952. On November 12, 1952, they filed a motion to set a date for presenting evidence of damages suffered through the injunction, but no copy was served upon the surety. This motion was denied on November 21, 1952. On February 23, 1953, the Lacsons again prayed for a date to present evidence for damages, and on March 10, 1953, they supplemented their petition to specifically pray for assessment of damages by reason of the issuance of the injunction. Copies of these later petitions were served on Dy Kho and the Visayan Surety. The respondent judge heard the evidence and, on November 28, 1953, awarded damages to the Lacsons, including P1,500 chargeable to the bond subscribed by the Visayan Surety. The surety moved for reconsideration, arguing the original decision had become final before the motions for damages were filed, but the motion was denied. The Visayan Surety then instituted this petition for certiorari.

ISSUE

Whether the respondent judge had jurisdiction to award damages against the surety on the injunction bond after the judgment dismissing the main case and dissolving the injunction had become final and executory.

RULING

No. The order of the respondent judge dated November 28, 1953, is hereby revoked. A claim for damages suffered by reason of the issuance of a preliminary injunction must be presented in the principal action, and judgment therefor must be included in the final judgment of the case. The remedy is exclusive, and by failing to file a motion for the determination of the damages in time and while the judgment is still under the control of the court, the claimant loses the right to such damages. The record shows the order of dismissal became final and executory on or before December 15, 1952. The Lacsons’ motion of November 12, 1952, was ineffective as no copy was served on the surety. Their subsequent motions of February and March 1953 were filed after the judgment had become final. Consequently, the lower court had already lost jurisdiction to amend its judgment to include damages against the surety. The payment made by Joseph Gotianuy to Isaac Lacson was out of personal funds and without the consent of the Visayan Surety, thus not affecting these proceedings.