Title
Abelow vs. De la Riva
Case
G.R. No. L-12271
Decision Date
Jan 31, 1959
A replevin case led to a judgment against Abelow, but execution against Luzon Surety was invalid as the final judgment lacked a directive against it, and defendants failed to notify the surety pre-finality.
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Case Digest (G.R. No. L-12271)

Facts:

1. Initiation of the Case:
In October 1950, Joseph Abelow filed a replevin action in the Manila Court of First Instance against Jose de la Riva and Gonzalo G. Padua to recover certain personal properties and claim damages. The plaintiff submitted the required affidavit and a "bond for manual delivery of personal property" under Rule 62, which was subscribed by Luzon Surety Co., Inc.

2. Seizure and Return of Properties:
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, as it was holding the properties. An amended bond was also submitted, signed by Luzon Surety. However, about a month later, the order of seizure was lifted after the defendants submitted a counter-bond, and the sheriff returned the properties.

3. Judgment and Appeal:
The replevin case proceeded to trial, and the court absolved the defendants. Abelow was ordered to pay San Ildefonso Lumber Co. P12,986.00 for damages caused by the seizure, plus P1,500.00 as attorney’s fees. Abelow appealed, but the Court of Appeals affirmed the judgment.

4. Execution and Alias Writ:
After the record was remanded to the lower court, a writ of execution was issued against Abelow but was returned unsatisfied, as no leviable properties were found. The defendants then sought an alias writ of execution against Luzon Surety Co., Inc., the surety that had subscribed the replevin bond.

5. Surety’s Objection:
Luzon Surety objected, arguing that:

  • The final judgment contained no directive against it.
  • It had no notice of the claim against Abelow.
  • The court had lost jurisdiction to amend the judgment to include an order against the surety.
  • Under Rule 62, the defendants were barred from recovery due to their failure to submit a claim or notify the surety before the judgment became final.

Despite these objections, the Manila court ordered execution against Luzon Surety, prompting the surety to appeal.

Issue:

  1. Whether the court erred in issuing an alias writ of execution against Luzon Surety Co., Inc., despite the final judgment not containing any directive against the surety.
  2. Whether the defendants’ failure to notify the surety or make a claim against it before the judgment became final bars recovery from the surety.

Ruling:

  • (Subscriber-Only)

Ratio:

  • (Subscriber-Only)


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