Case Digest (G.R. No. 92241)
Facts:
Lilia T. Ong v. Court of Appeals and Virginia Sarmiento, G.R. No. 92241, October 17, 1991, First Division, Medialdea, J., writing for the Court.Virginia Sarmiento sued Eligio Dee for P121,759.00 as the value of construction materials allegedly obtained by him, plus attorney’s fees and litigation expenses; Dee had earlier issued checks totaling P40,000.00 that later bounced. Sarmiento prayed for a writ of preliminary attachment. The complaint was amended to add Lilia Ong as defendant on the allegation that she and Dee issued the checks and that the materials were delivered to Ong’s piggery.
The trial court issued a writ of attachment which was served on Ong and resulted in the levy of hogs valued at P40,000.00; the court later issued a temporary restraining order against further enforcement pending Ong’s motion to quash. On November 4, 1988 the trial judge rendered judgment (received by Ong November 29, 1988) finding Dee and Ong jointly and severally liable for P121,759.00. Dee and Ong filed a notice of appeal on December 2, 1988.
On December 12, 1988 Sarmiento filed a Motion for Immediate Execution Pending Appeal (dated December 9, 1988), alleging the appeal was dilatory and frivolous. Ong opposed, arguing the trial court lacked jurisdiction to grant execution because the appeal had been perfected and because there already existed a writ of attachment. On January 26, 1989 the trial judge issued an order granting execution pending appeal, conditioned on a bond in the amount of P121,759.00.
Ong filed a petition for certiorari and prohibition with injunction in the Court of Appeals on February 2, 1989; the Court of Appeals dismissed it on October 18, 1989, upholding the trial court’s issuance of the writ. The Court of Appeals reasoned that (1) the trial court had noted the circumstances in Section 2, Rule 39 (motion by prevailing party with notice; good reasons stated in a special order), (2) Sarmiento’s allegations that the appeal was frivolous and dilatory plus the posting of bond constituted “good reasons,” and (3) the filing of a notice of appeal does not perfect an appeal — perfection occurs on the expiration of the last day to appeal (citing Montelibano v. Bacolod-Murcia Milling Co., Inc. and Yabut v. IAC), so when Sarmiento filed her motion (Decembe...(Subscriber-Only)
Issues:
- Did the trial court have jurisdiction to entertain and grant a motion for execution pending appeal after the filing of a notice of appeal but before the appeal was perfected?
- Could the trial court properly find the appeal frivolous or dilatory and base issuance of execution pending appeal on that finding?
- Is the mere posting of a bond by the prevailing party a sufficient “good reason” under Section 2, Rule 39 to justi...(Subscriber-Only)
Ruling:
- (Subscriber-Only)
Ratio:
- (Subscriber-Only)
Doctrine:
- (Subscriber-Only)