[ G.R. No. 30004. December 29, 1928 ] 52 Phil. 633
[ G.R. No. 30004. December 29, 1928 ]
FILOMENA MARTINEZ, PETITIONER, VS. PEDRO CONCEPCION, JUDGE OF FIRST INSTANCE OF MANILA, EL COLEGIO DE LA INMACULADA CONCEPCION DE LA CONCORDIA AND THE PROVINCIAL SHERIFF OF CAVITE, RESPONDENTS. D E C I S I O N
ROMUALDEZ, J.:
This is a certiorari proceeding originally instituted in this court seeking to have an order issue to the respondent Judge Pedro Concepcion directing him to forward to this court the record in case No. 25961 of the Court of First Instance of Manila, entitled Colegio de la Inmaculada Concepcion de la Concordia vs. Jose Martinez, for review; that the proper order issue to all the respondents enjoining them from taking any steps relative to the continuation of the attachment and sale of the petitioner’s property at public auction until this court has rendered judgment, and annulling the writ of execution issued in said case. Wherefore, the petitioner prays as ancillary relief, that an injunction be issued; (a) To Judge Pedro Concepcion directing him to vacate his writ of execution of April 11, 1928, against the sureties in said civil case No. 25961; (b) to the Colegio de la Inmaculada Concepcion de la Concordia, its agents, attorneys, representatives and mandataries, and any other persons who might aid and represent it, restraining them from asking for the execution of any judgment rendered by the respondent Judge against the petitioner; and (c) to the provincial sheriff of Cavite or his deputies to refrain from taking any action with reference to the attachment of the herein petitioner’s property, and to suspend the public auction sale of said property announced for July 13, 1928, at 9 a. m., at Cavite, Cavite, granting the petitioner any other just and equitable remedy.
On July 12, 1928, the writ of injunction applied for was issued by a member of this court and on the 26th day of the same month and year the respondents filed an answer praying for the dismissal of the action and that the petitioner be sentenced not only to pay the costs of this action, but also to reimburse the Colegio de la Inmaculada Concepcion de la Concordia for all expenses occasioned by the fact that the auction was not held on July 14, 1928.
Counsel for the petitioner replied to this answer on July 31, 1928.
Having set the day, oral argument was had on the case on July 31, 1928.
In a petition presented on August 6, 1928, the respondents through counsel insisted upon, their prayer for dismissal, giving as a reason the fact that the defendant in said civil case No. 25961 took an appeal, which, according to said lawyer, confirms his contention that the certiorari is not the proper remedy, but the appeal.
On August 11, 1928, counsel for the petitioner filed an opposition to the petition for dismissal formulated by the attorney for the respondents.
The facts pertinent to the case are as follows:
On May 22, 1924, the herein petitioner Filomena Martinez subscribed a bond in the sum of P1,000 for the dissolution of the preliminary attachment ordered in said civil case No. 25961 of the Court of First Instance of Manila.
On October 29,1925, said cause was dismissed for failure of the plaintiff to prosecute, the lower court issuing the following order:
“Neither party having taken any steps in the prosecution of this case from October 21, 1924, to date.
“It is hereby ordered that the same be dismissed without special pronouncement as to costs, and without prejudice to reinstating the action by the payment of the proper docketing fee.
“So ordered.”
On November 7, 1925, the party plaintiff prayed that said dismissal of the case be set aside.
On November 14, 1925, the lower court decided the petition by an order which, literally, is as follows:
“Having heard the petition presented by the attorney for the plaintiff praying that the order of dismissal issued in this case be set aside, it is hereby denied unless the proper docketing fee be paid to the clerk.
“So ordered.”
On December 28, 1925, the parties in said civil case, No. 25961, filed the following stipulation with the trial court:
“Come now the parties in the above-entitled case and respectfully submit the present stipulation as follows, to wit:
“That this case be ordered reinstated, setting aside the order of dismissal, and just as soon as this stipulation is approved the plaintiff shall pay the proper docketing fee to the clerk of this court.
“Manila, December 28, 1926 (should be 1925).
“J. R. SERRA
“438 Rizal Ave., Manila
“Attorney for defendant
“GREGORIO PERFECTO
“93 Legaspi, Manila
“Attorney for the defendant (should be plaintiff)”
On January 22, 1926, the trial court issued the following order:
“In accordance with the foregoing stipulation of the parties, the order of dismissal shall be set aside as soon as the proper fee is paid to the clerk of the court.”
On February 4, 1926, the plaintiff, alleging payment of the proper fee, asked that the order of dismissal of the case be set aside.
On February 6, 1926, the trial court granted the petition issuing an order which reads:
“The fee of the clerk of this case having been paid again, and, in accordance with the petition of the attorney for the plaintiff, the order of dismissal of October 29th of last year is hereby set aside.”
A trial having been had and judgment rendered against the defendant, the latter appealed therefrom to this court, which, deciding the appeal, on October 7, 1927, sentenced the defendant to pay the plaintiff the sum of P717.10 with legal interest and costs. Then the order of execution having issued, it was found that the defendant was insolvent, for which reason, upon petition of the plaintiff Colegio de la Inmaculada Concepcion de la Concordia, the trial court on April 11, 1928 ordered the issuance of a writ of execution against the defendant’s sureties, the said defendant’s automobile, which had been attached, having disappeared, the release of which from the attachment was ordered because said sureties furnished a bond.
Steps were taken to comply with the last writ of execution, announcing the public auction sale of some realty belonging to the herein petitioner, one of the said sureties.
But the latter, believing her rights to be injured and alleging that the respondent Judge of First Instance had no authority to order the execution of such judgment against the aforesaid sureties, and in doing so had exceeded its jurisdiction, instituted the present certiorari proceedings.
The question presented for our consideration is whether or not the bond given by the aforementioned sureties continued in effect in spite of the dismissal of the case ordered by the Court of First Instance on October 29, 1925, said dismissal not being imputable to said sureties, and the latter not having taken any part in the stipulation by and between the parties on December 28, 1925, agreeing to a reinstatement of the case.
It should be observed that the order of November 14, 1925, issued before the dismissal ordered on October 29, 1925, became final, substantially modified said order of October 29th, the order of November 14th having the effect, although indirectly, of setting aside the dismissal upon payment of the docketing fee. The setting aside of the order of dismissal having been thus conditionally granted, the case continued to subsist although the proceedings therein were suspended while the condition imposed for the payment of the said fees was not fulfilled, for which the court had fixed no period.
It is to be observed, moreover, that the dismissal ordered on October 29, 1925, could not have the effect of terminating the case while it was not entered on the docket of the court as required in the last part of subsection 4 of section 127 of the Code of Civil Procedure. And it does not appear that such entry was made. At any rate, said order of dismissal, as we have said, was duly modified before it became final.
Consequently, by virtue of the order of November 14, 1925, the case, strictly speaking, was not dismissed but simply suspended, that is, to use the English juridical phraseology, there was a “stay” of the proceedings. Such suspension or “stay” is within the discretion of the courts and may be granted for several causes.
“A stay of proceedings is a matter so largely within the discretion of the court that no attempt seems to have been made specifically to enumerate the grounds authorizing it. Stays have been most frequently granted upon the ground of another action pending, and as a means of enforcing the payment of costs, but various other grounds have been recognized.” (1 C. J., 1161, 1162.)
And in the footnote of the text cited, among the grounds for such suspension or stay is the one which the trial court took into consideration in the case before us, that is, the lack of the prosecution of the case for a long time. Such footnote, in its pertinent part, is as follows:
“(a) Grounds authorizing stay.—(1) * * * (2) where an unreasonable length of time has been allowed to elapse after the institution of the action without taking any steps therein. (Bryan vs. Zimmerly, 16 Pa. Co., 564.)'”
The condition of payment of said fee did not necessarily signify the renewal of an action already dismissed, but was a sanction or penally imposed on the plaintiff for failure to take any steps in the proceeding. Such penal conditions in these cases may be imposed by the courts. It may be seen from the part cited from Corpus Juris (vol. 1, pp. 1161, 1162) that:
“Stays have been most frequently granted upon the ground of another action pending, and as a means of enforcing the payment of costs, etc.” (Italics ours.)
For this reason, from the time the order of November 14, 1925, was issued, the original case remained in such a state of abeyance pending the payment of the fee. That status quo could not, for the reasons stated, be considered anything more than a mere stay of proceedings, and the court that issued said orders thus understood it, when on January 22, 1926, in the face of the stipulation of the parties that the case be reinstated (not that the action be renewed, in the phraseology of the order of October 29, 1925, later modified), it reiterated its order of November 14, 1925, absolutely promising to sat aside the dismissal as soon as the proper fee was paid. As may be seen from the copy of said order of January 22nd above quoted, its text, among other things, says:
“* * * the order of dismissal shall be set aside as soon as the proper fee is paid to the clerk of the court.”
And, indeed, when the said fee was paid the court, by its order of February 6, 1926, set aside “the order of dismissal of October 29th of last year.” And it should be noted, in confirmation of the conclusion that by the last-named order the case was only reinstated and was not renewed, that there was no new complaint, nor any new summons, nor new allegations, and the case continued from the stage of the proceeding where it was left off by the stay.
The fact that the sureties did not participate in the agreement to reinstate the case, is, in our opinion, of no importance. That agreement was not to renew a case already finally dismissed, but only to reinstate a case conditionally suspended.
During that stay of the case it is clear that the bond given by the herein petitioner, and the scope and effects of which are discussed in the present proceedings, continued and still continues to remain in full force and effect.
It follows from this that the herein petitioner, by virtue of such bond given by her, is still bound under the provisions of section 440 of the Code of Civil Procedure, the respondent judge not having acted without or in excess of his jurisdiction in ordering the execution of the aforesaid judgment against the sureties in view of the insolvency of the principal obligor, the defendant in said case.
For the foregoing, the petition for certiorari filed herein must be, as it hereby is, denied, with costs against the petitioner, setting aside the preliminary injunction herein issued. So ordered.
Avanceña, C. J., Johnson, Villamor, and Ostrand, JJ., concur.