G.R. No.

L-4600

February 28, 1952

PEDRO BABALA, petitioner,

vs.
HON. MAXIMINO ABAO, ET AL., respondents.
Agustin Lukban and Generoso F. Obusan for petitioner.
Victoriano Yamson and Rafael de la Cruz for respondents. Hon.
Maximino Abao for and in his own behalf.
PARAS, C.J.:
Consequent upon a dispute over a market stall, an information for grave
coercion was filed on January 26, 1951, in the Court of First Instance of
Camarines Norte, against the herein petitioner Pedro Babala, at the
instance of the herein respondent Patricio Canela. On the same date,
respondent Canela filed in said court a civil action against petitioner
Babala, for damages based on the same facts alleged in the information
for grave coercion, in which action respondent Canela prayed for the
issuance of a writ of preliminary mandatory injunction. In the civil case,
the petitioner insisted that the criminal case should have precedence,
The Court of First Instance of Camarines Norte, however, issued an
order dated February 6, 1951, providing that the trial of the civil case
upon the merits was suspended until after the criminal case shall have
been decided and terminated, but that the hearing on the petition for
preliminary injunction might be proceeded with. The present petition for
certiorari and prohibition was instituted by the petitioner to set aside this
order, it being argued that the criminal case suspended the trial of the
civil case, including the matter of the issuance of the writ of preliminary
injunction.
Petitioner's contention is unfounded. In the case of Ramcar, Inc., vs. De
Leon (44 off. Gaz., p. 3795; 78 Phil., 449) we have already ruled that,
although the civil action is suspended until final judgment in the criminal
case, the court is not thereby deprived of its authority to issue

preliminary and auxiliary writs, such as preliminary injunction,

attachment, appointment of receiver, fixing amounts of bonds, and other
processes of similar nature which do not go into the merits of the case. It
was reasoned out that "if those ancillary processes cannot be resorted to
during the suspension, there is no sense in the rule providing only for
suspension, when its effect is to kill the action."
It becomes unnecessary to touch upon the contention of the
respondents that the petition for certiorari and prohibition is defective for
lack of verification.
Wherefore, the petition is dismissed with costs against the petitioner. So
ordered.
_____________
SANTOS VS FLORES

______________

[G.R. No. 39562. September 27, 1933.]

JUAN L. ORBETA, Petitioner, v. FILEMON SOTTO, ET AL., Respondents.
Guillermo B. Guevara, for Petitioner.
Sotto & Astilla and Filemon Sotto, for Respondents.
SYLLABUS
1. PRACTICE AND PROCEDURE; PROCEEDINGS INSTITUTED CONTRARY TO THE
SPANISH LAW OF CRIMINAL PROCEDURE; VOID ATTACHMENT. Civil
proceedings instituted contrary to the provisions of the Spanish Law of Criminal
Procedure quoted in the decision of the court are without force and effect. An
attachment issued in the course of such an improper proceeding must be
vacated, as one of the requirements before an order of attachment can issue
under section 426 of the Code of Civil Procedure is "that a sufficient cause of
action exists."
DECISION

HULL, J.:
Original petition for certiorari. The petitioner has been convicted in the Court of
First Instance of Cebu of the crime of arson and in addition to a sentence for the
crime has been held to indemnify respondent Sotto in the sum of P40,000. From
this sentence, Orbeta has appealed to this court.
After appeal, Sotto brought a civil action in the Court of First Instance of Cebu
for the sum of P40,000 based on the same acts for the value of the identical
property, that forms the basis of the criminal prosecution. At the time of
bringing the civil action a writ of attachment was granted, and the motion to
discharge attachment has been denied. In this proceeding, we are asked to pass
upon the validity of the attachment, and if it is found to be improperly or
irregularly issued, to discharge the attachment.
Articles 112 and 114 of the Spanish Law of Criminal Procedure are applicable to
this case. (Secs. 1 and 107, General Orders, No. 58; Almeida Chantangco and
Lete v. Abaroa, 218 U.S., 476; 40 Phil., 1056; Alba v. Acua and Frial, 53 Phil.,
380.) They read as follows:
jgc:chanroble s.com.ph

"Art. 112. When the criminal action is instituted, the civil action shall be deemed
included therein, unless the party injured or prejudiced waives it, or expressly
reserves it to be brought after the criminal action has been decided, should it
lie.
"If only the civil action arising from one of those crimes which cannot be
prosecuted save upon private complaint is instituted, the criminal action shall
forthwith be extinguished."
cralaw virtua1aw library

"Art. 114. Upon the institution of criminal proceedings for a felony or

misdemeanor, no civil suit on the same act shall be prosecuted; and should it
have been instituted, it shall be suspended, pending final judgment in the
criminal case.
"It shall not be necessary for the prosecution of the criminal action that the civil
suit arising from the same felony or misdemeanor should have been previously
instituted."
cralaw virtua1aw library

The civil responsibility of Orbeta to Sotto will be decided in the criminal

proceedings. If the conviction is upheld, an indemnity will be awarded. If Orbeta
is finally acquitted, no civil responsibility for his alleged crime exists. The
Almeida case aforecited, like this, grew out of a case of arson and holds that the
civil liabilities of the accused were settled by the criminal prosecution.

Therefore civil proceedings instituted contrary to the provisions of the Spanish

Law of Criminal Procedure above quoted, are without force and effect. An
attachment issued in the course of such an improper proceedings must be
vacated, as one of the requirements before an order of attachment can issue
under section 426 of the Code of Civil Procedure is "that a sufficient cause of
action exists."
Writ granted. Costs against respondent Sotto. So ordered.
_________

G.R. No. 41036

September 27, 1934

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
JUAN MORENO, defendant-appellant.
Emerito M. Ramos for appellant.
M. G. Bustos as private prosecutor.
AVANCEA, C.J.:
The appellant was charged with the crime of homicide through reckless
imprudence in the Court of First Instance of Bulacan. He was found
guilty and sentenced to one year and one day of prision correccional, to
indemnify the heirs of the deceased in the sum of P1,000, with the
corresponding subsidiary imprisonment in case of insolvency.
In this instance, the widow of the deceased filed a petition for the
attachment of the property of the appellant alleging that he is about to
dispose, if he has not already disposed of his property, with intent to
defraud his creditors and, particularly so, in case the appealed judgment
is affirmed, the heirs of the deceased will be unable to collect any of the
indemnity awarded them.
In the case of United States vs. Namit (38 Phil., 926), this court held that
the remedy of attachment which was available under the Spanish
system of criminal procedure was abrogated upon the adoption of
General Orders, No. 58, and was no perpetuated by the reservation
contained in section 107 of this law. This ruling has been followed from
the time this decision was rendered in 1918 and had been adopted even

prior thereto, from the time General Orders, No. 58 went into effect, and
this court sees no reason to alter it.
General Orders, No. 58 which is the law of criminal procedure in force,
contains no provision relative to attachment of the property of an
accused in a criminal case.
We cannot resort to the former criminal procedure on the ground that it
made the attachment of the property of the accused depend upon the
result of the summary, a procedure which is not now in effect. therefore
we have no basis for determining whether attachment lies or not.
We cannot resort to the law of civil procedure in force, simply because it
is for civil cases. Furthermore, it would be impracticable in a criminal
action. Section 427 of the Code of Civil Procedure provides that before
the order of attachment is made the party applying for it must execute to
the defendant an obligation in an amount to be fixed by the judge, or
justice of the peace issuing it, with sufficient surety for an amount not
exceeding that claimed by the plaintiff. In the case there is no basis for
fixing the bond inasmuch as the information neither contains nor states
the amount of the appellant's civil liability. It is true that under the
circumstances in the which the petition for attachment has been filed,
judgment had already been entered against the appellant fixing his civil
liability at P1,000. However, this does not solve the difficulty inasmuch
as under the terms by which the order of attachment is granted by the
law of civil procedure, should such attachment lie in a criminal action, the
same might be issued at any stage of the proceedings and not only after
judgment is rendered in the first instance.
On the other hand, according o section 439 of the Code of Civil
procedure, if the judgment rendered is favorable to the defendant, he
may have judgment against the plaintiff for the damages he may have
sustained by reason of the attachment, after summary hearing in the
same action on due notice. Should the appellant be acquitted in this
instance, he would be unable to enforce his right to claim damages as
the judgment to this effect should be entered in the first instance and
may be reviewed on appeal by this court. On the other hand, as a
summary hearing of the matter would be necessary before due notice, it
is now too late to enter into this proceeding inasmuch as it should also

be conducted in the first instance. It cannot be said that this

inconvenience would be obviated by remanding the case to the lower
court for the corresponding hearing, on the ground that this would
require another judgment by the lower court which would likewise be
appealable to this court, thus giving rise to a confusion of proceedings in
a criminal action.
Furthermore, the offended party in a criminal case may bring a civil
action independently before the criminal action is instituted, or after the
latter has been instituted, he may reserve his right to bring a civil action
independently thereof if he desires to avail himself of the remedies
afforded by the law of civil procedure. If he does not do so and prefers to
include his civil action in the criminal action brought by the Government,
he should accept all the protection afforded by the criminal procedure
and nothing more. He cannot bring to the criminal action the means
which might have been used in the civil action which he has abandoned.
For these considerations, the petition is denied. So ordered.
Street, Hull, Vickers, Imperial, Butte and Diaz, JJ., concur.

Separate Opinions
MALCOLM, J., dissenting:
The question suggested by the record in the present case and
necessarily involved in every criminal case in which the offended party is
awarded a civil indemnity concerns the question of what, if any, remedy
is available to the offended party to enforce the civil indemnity.
The Revised Penal Code, like its predecessor the Spanish Penal Code,
provides that every person criminally liable for a felony is also civilly
liable (Book I, Title 5). The Code of Criminal procedure recognizes the
same rights of the person injured by the offense in section 107 which
provides that "The privileges now secured by law to the person claiming
to be injured by the commission of an offense to take part in the
prosecution of the offense and to recover damages for the injury

sustained by reason of the same shall not be held to be abridged by the

provisions of this order; but such person may appear and shall be heard
either individually or by attorney at all stages of the case, and the court
upon conviction of the accused may enter judgment against him for the
damages occasioned by his wrongful act. . . ." This being the law, and
this of course being conceded, when then is the remedy available to the
injured party who secures damages of a civil nature in the criminal case?
As I understand the decision of this court, there is no remedy available.
In the case of United States vs. Namit ([1918], 38 Phil., 926), this court
held, on facts quite similar to those in the present case, that an
attachment could not be sustained under article 589 of the Spanish Law
of Criminal Procedure. In Orbeta vs. Sotto ([1933], 58 Phil., 505), it was
held that articles 112 and 114 of the Spanish Law of Criminal Procedure
are applicable, and that the injured party could not bring a civil action
based on the same acts for the value of the identical property that forms
the basis of the criminal prosecution. In United States, vs. Namit,supra, it
was further held that the attachment could not be sustained under
sections 424 and 412 of the Code of Civil Procedure. Consolidating
these holdings, we thus find that an attachment could not be had under
one provision of the Spanish Law of Criminal Procedure, although other
provisions of the same Spanish Law of Criminal Procedure are in force,
that an attachment could not be had under sections 424 and 412 of the
Code of Civil Procedure, and that the injured party could not bring a civil
action based on the same acts that form the bases of the criminal
prosecution and secure a writ of attachment to make it effective.
The present decision follows the case of United States vs. Namit, supra,
but makes no mention of the case of Orbeta vs. Sotto, supra. The
opinion now expressed would accordingly be that an attachment could
not be sued out either under the Spanish Law of Criminal Procedure or
under the present Code of Civil Procedure. It is now suggested that the
offended party in a criminal case could institute an action independently
before the initiation of the criminal case or after it was started could
reserve his right to an independent civil action if he desired to make use
of the provisions of the Code of Civil Procedure, but that if this was not
done, civil remedies would not be available. Whether this doctrine is in
accordance with that announced in Orbeta vs. Sotto, supra, is not
discussed.

It seems illogical to me to even suppose that when two codes, the

Revised Penal Code and the Code of Criminal Procedure, go out of their
way to assimilate the civil action with the criminal action, all the remedies
which have to do with civil actions are not available to enforce the same.
It is not necessary that each Code contain in itself all of the provisions
which make it effective. Every day the provisions of one Code are made
use of to make effective the provisions of another Code. When,
therefore, the Revised Penal Code and the Code of Criminal Procedure
expressly authorize the inclusion of the civil action in the criminal action,
and this is done, every right which pertains to the civil action follows the
civil action as a matter of course. If the civil action had been brought
independently, no one would question the right of an attachment to
issue. What difference is there between the civil action brought
independently and the civil action tried according to law with the criminal
side of the case?
I am not particular as to what Code is made applicable, whether the
Spanish Code of Criminal Procedure or the present Code of Civil
Procedure. I can see how an argument can be made predicated on the
opening paragraph of the Code of Criminal Procedure which amended
the Code of Criminal Procedure then in force, and which in section 107
recognized the privileges there secured by law to the person claiming to
be injured. I think, however, that it would be preferable to hold that the
law of Criminal Procedure of Spain was necessarily abrogated upon the
promulgation of General Orders, No. 58. This being true, I would make
use of whatever provisions are found in the Code of Civil Procedure to
afford protection to civil rights.
Returning for a moment to the facts of the present case, we have the
heirs of the deceased, consisting of a widow and her children, authorized
to receive the customary P1,000 because of the murder of the husband
and father. The accused is now disposing of his property to thwart this
judgment. As I understand the opinion of the majority, the offended
parties stand helpless and must see this property disappear without any
way available for them to stop it being done. I do not think that this was
the purpose of the law, but on the contrary am of the opinion that the
offended parties having been awarded a civil judgment, have the right to
enforce and protect that judgment by the remedies found in the Code of
Civil Procedure.

I regret to have disagree with the opinion of the majority, but under the
circumstances I am compelled to do so and to register my dissent to the
denial of the motion presented on behalf of the offended parties.
Abad Santos and Goddard, JJ., concur.

VILLA-REAL, J., dissenting:

I concur in the dissenting opinion of Justice Malcolm and I wish to add
further that as this court has held in numerous decisions that article 112
of the Spanish Law of Criminal Procedure of 1870, which provides that
"if the criminal action alone is instituted it shall be understood that the
civil action is also availed of unless the injured or offended party has
renounced it or has expressly reserved his right to bring it after the
criminal action is terminated, if it should lie," is in force, I do not see any
reason why the complementary legal provision contained in article 589 of
said law which provides that "when the summary discloses indications of
criminality against a person, the judge shall order him to file a bond in an
amount sufficient to secure the pecuniary liabilities which might finally be
properly declared, directing in said order the attachment of property
sufficient to cover said disabilities in case he does not file a bond,"
should be repealed, when there is no law either expressly or impliedly
repealing it. Although it was held in the case of United States vs. Namit
(38 Phil., 926), that "the remedy of attachment which was available
under the Spanish system of criminal procedure was abrogated upon the
adoption of General Orders, No. 58, and was not perpetuated by the
reservation contained in section 107 of this law," however, when in the
course of time it is discovered that such doctrine is prejudicial to the
ignorant victims of the crime and to their families who, for lack of
counsel's advice and through ignorance, fail to request the reservation of
the civil action upon the institution of the criminal action by the
prosecuting attorney, I do not see why, for the sake of equity and justice,
the doctrine should not be changed by declaring in force the
complementary legal provision which the Spanish legislator, ever mindful
of the welfare of such victims and their families, deemed necessary to
enact. If a law may be amended or repealed when it proves to be self-

defeating, there is no reason why a judicial rule may not be reformed

when it produces the same effect. The same Anglo-Saxon law which has
a fanatical reverence for the rule of stare decisis admits that previous
doctrines may be ignored when a continuation of their observance may
cause grievous wrong.
In volume 15, page 956, of the Encyclopedia of American Jurisprudence
entitled Corpus Juris, the American law on this matter is summarized as
follows:
RULE NOT APPLIED TO PERPETUATE ERROR. The rule of
stare decisis is not so imperative or inflexible as to preclude a
departure therefrom in any case, but its application must be
determined in each case by the discretion of the court, and
previous decisions should not be followed to the extent that
grievous wrong may be the result. Accordingly, the courts will not
adhere to a doctrine which, although established by previous
decisions, they are convinced is erroneous, unless it has become
so well established that it may airly be considered to have become
a rule of property. However, an established rule will not be
departed from except in case of grave necessity, and on the fullest
conviction that the law has been settled wrongly, and that less
injury will result from overruling than from following the earlier
decisions. But where the occasion requires the review of a rule of
law not so well settled by authority as to preclude such
examination, a state court of last resort will review it.
It may be alleged that under criminal procedure in force, the summary is
unknown. Summary is "the stage of the proceedings in a criminal case
which has not yet reached the plenary"; and plenary is "the stage in
which the case is set for trial for the ratification of the witnesses at the
summary and admission of other new ones, and for the arraignment of
the defendant and other proceedings preparatory to judgment . . . and
according to the law of May 24, 1870, the plenary begins with the
arraignment and the presentation, exhibition, discussion and
appreciation of the evidence." According to said definitions, the summary
is equivalent in our criminal procedure to the preliminary investigation
conducted by the fiscal to convince himself that there is sufficient
evidence to justify the filing of charges with the competent court.

Therefore, by analogy, after the fiscal has filed an information, the judge
who is competent to try the case may order the alleged accused to file a
bond sufficient to secure the pecuniary liabilities which may finally be
declared proper, directing therein the attachment of property sufficient to
cover said liabilities if he does not file a bond. In this manner the rights of
the poor victims of crimes and those of their families would be protected
and they would not be so entirely helpless, as they are now, when they
are without means to engage the services of counsel to advise them and
asked for them the reservation of the right to prosecute the civil action,
as the majority desire.
In my humble opinion, the doctrine laid down in the above cited case of
Namit should be changed and either the widow of the deceased in the
case at bar should be granted the order of attachment sued out by her or
the accused should be required to file a bond.
__________

G.R. No. L-1329

May 15, 1947

RAMCAR, INCORPORATED, petitioner,

vs.
DIONISIO DE LEON, Judge of First Instance of Manila, ET
AL., respondents.
Roman A. Cruz for petitioner.
Ferdinand E. Marcos for respondents.
PERFECTO, J.:
On December 26, 1946, petitioner initiated a civil action against Daniel
Francisco, Ulysses S. Tread, Jr., and Antonio Lloret, by filing a complaint
for damages with the Court of First Instance of Manila, praying that
defendants be sentenced to pay the sum of P5,000, value of a stolen
taxicab, P500, a price offered through the newspaper to anyone who
could point the whereabouts of said taxicab, plus P50 per day as the
average minimum daily income of the car and the costs of the suit, and
that, pending all proceedings attachment of the properties of defendants
be ordered, upon such bond and in the amount that the court may deem
proper to fix.

Plaintiff alleged that he owns, among other taxicabs, a Renault car with
motor No. 36428, painted black and white and provided with a taximeter,
the total value of which is P5,000, and that about December 2, 1946, it
was stolen from the parking place in front of the premises of plaintiff at
1049 R. Hidalgo, Manila, and after many days of fruitless search, an
offer of P500 through the newspapers was made to anyone who could
point to its whereabouts, and that said car, already in dismantled
condition, was found in and recovered from the possession of
defendants, who confessed to the representative of plaintiff and the
police authorities as being the authors of the theft of said car and of
dismantling it to pieces, making it completely unserviceable and a total
loss. In support of the petition for the issuance of a writ of attachment,
plaintiff alleged that defendants were concealing their properties and
were about to dispose of them with intent of defrauding their creditos,
including plaintiff.
Two days later, on December 28, an information for the theft of the
above-described taxicab and based on the same facts alleged in the
complaint, was filed with the court of first instance against the said three
defendants.
On January 2, 1947, after petitioner had filed a bond in the amount of
P5,000, a writ of attachment was issued against the properties of
defendants. On January 14, 1947, defendant Daniel Francisco filed a
petition praying for the dismissal of the complaint and for the setting
aside of the writ of attachment. On January 27, 1947, defendant Ulysses
S. Tread, Jr., moved for the suspension of the time within which to file a
responsive pleading to the complaint and to dissolve the writ of
attachment. On January 30, 1947 respondent judge issued an order
denying the dismissal of the complaint prayed for by Daniel Francisco,
but granted its petition to set aside the writ of attachment against him.
On February 3, the same judge granted the petition of defendant
Ulysses S, Tread, Jr., dated January 27, 1947. On February 20, 1947,
respondent judge denied the motion for reconsideration filed by plaintiff
who, consequently, filed with this Supreme Court the petition which is
now under our consideration, praying that the orders of respondent
judge of January 30 and February 3 and 20, 1947, be declared null and
void and that the writ of attachment of January 2, 1947, be declared valid
and in force.

Respondent judge set aside the writ of attachment of January 2, 1947,

upon the theory that it was improperly issued because at the time of its
issuance the information in the criminal case had already been filed, the
theory being based on the lower court's interpretation of section 1 of
Rule 107 in which it is read:
(b) Criminal and civil actions arising from the same offense may be
instituted separately, but after the criminal action has been
commenced the civil action cannot be instituted until final judgment
has been rendered in the criminal action;
(c) After a criminal action has been commenced, no civil action
arising from the same offense can be prosecuted; and the same
shall be suspended, in whatever stage it may be found, until final
judgment in the criminal proceeding has been rendered.
From the provisions of Rule 107 it is clear that, unless there is a waiver
of civil action or reserve of the right to initiate it expressly, criminal action
always carries the civil action for recovery of liability arising from the
offense charged; that when criminal action has been commenced before
the civil action, the latter cannot be instituted until final judgment has
been rendered in the former; that when the civil action has been
commenced before the criminal action, the former shall be suspended
upon the institution of the latter and until final judgment is rendered in the
same; that, generally, extinction of the criminal action does not carry with
it extinction of the civil; and that final judgment rendered in a civil action
in absolving defendant from the civil liability is no bar to a criminal action.
The above-quoted subsection (c) is the one directly applicable to the
facts in this case, although it should not be interpreted as an isolate
provision, but in conjunction with the rest of Rule 107. Said subsection
enjoins that the civil action arising from the same offense can be
prosecuted after a criminal action has been commenced, and if the civil
action has been instituted before the criminal, it "shall be suspended, in
whatever stage it may be found, until final judgment in the criminal
proceeding has been rendered." The question is whether, under such
injunctions, the lower court was, after the filing of the information in the
criminal case, ipso facto deprived of the power to issue preliminary and
auxiliary writs, such as preliminary injunction, attachment, appointment

of receiver, fixing amounts of bonds to be filed, and other processes of

similar nature, none of which goes into the merits of the case.
Under the subsection in question, the civil action undergoes a procedural
freezing. But, in the same way that in physical congelation not all
manifestations of life are wiped out, the procedural freezing in question
does not have the effect of wiping out all manifestations of the existence
of the suspended civil action. Marmots and certain species of bats,
including pipistrels, when hibernating in burrows and caves during
winter, offer the appearance of immobile corpses or simple lumps of ice.
But within the lifeless appearance that deceives human perception,
because metabolism, heart-beat rate, breathing and body temperature
drop so low, there lies the mysteriously latent vitality that, when
hibernation is over, will permit those animals to run with surprising agility
and to soar high in cross-country flying. Suspension is not termination.
Suspension is not final ending, is not destruction, is not death. The
suspended civil action continues to be alive. Only its evolution to
maturity is temporarily stopped. Only it has to bide time. In meantime,
while it is waiting to be tried and decided on the merits, it may avail itself
of the ancillary processes which, expressly authorized by law, will permit
it to accomplish its purposes efficaciously, and may defend itself against
bad faith, fraud and other evil practices, intended to make nugatory the
relief sought by it and to defeat the ends of the administration of justice.
If those ancillary processes cannot be resorted to during the suspension,
there is no sense in the rule providing only for suspension, when its
effect is to kill the action. We cannot subscribe to the idea that the
authors of the subsection in question, in providing for the suspension of
the civil action during the life of the criminal action, had the purpose of
crippling to death the civil action, but lacked the honesty of saying so in
an outright manner, seeking rather the hypocritical method of concealing
their purpose under a deceitful word.
No one should forget that civil action for recovery of civil liability arising
from an offense has always deserved the concern of the law. The
Revised Penal Code, although it is supposed to deal only on criminal
offenses, contains an express provision reserving to offended parties
such civil action. To make effective that right of recovery of civil liability,
section 2 of Rule 106 grants to the offended party the right to commence
a criminal action through a complaint, and section 16 of the same rule

guarantees to the offended party the right of intervention in criminal

action, either personally or by attorney. Rule 107 has been drafted to
further guarantee to the offended party the right of recovery
abovementioned.
When no civil action is expressly instituted, according to subsection (a)
of section 1 of Rule 107, it shall be impliedly jointly "instituted with the
criminal action." That means as if two actions are joined in one as twins,
each one complete with the same completeness as any of the two
normal persons composing a twin. It means that the civil action may be
tried and prosecuted, with all the ancillary processes provided by law.
Such was the idea of the Supreme Court in United States vs. Heery (25
Phil., 600) where, besides affirming the criminal judgment rendered
therein, it ordered the record returned to the lower court "for the further
purpose of completing the civil branch of the case." Therefore, within the
criminal action, with which the civil action is "impliedly instituted," the
offended party may obtain the preliminary writ of attachment. There is no
logic in denying that right to the plaintiff, when the civil action is
separately instituted.
The orders of the respondent judge dated January 30 and February 3,
1947, having been issued upon a wrong interpretation of subsection (c)
of section 1 of Rule 107, and no intimation to the contrary having been
made, we should assume that, without said wrong interpretation, the writ
of attachment was issued because the plaintiff was, under the facts and
the law, entitled to its issuance, and that there was the duty of the lower
court to issue it.
For all the foregoing, the orders of the respondent judge of January 30
and February 3, 1947, are set aside, and the writ of attachment of
January 2, 1947, is maintained, unless and until lifted through a proper
counter-bond that the defendants may file or for any other reason
recognized by law. Costs shall be taxed against respondents.
Paras, and Bengzon, JJ., concur.
Tuason, J., concurs in the result.
_______________

G.R. No. 144740 August 31, 2005

SECURITY PACIFIC ASSURANCE CORPORATION, Petitioners,
vs.
THE HON. AMELIA TRIA-INFANTE, In her official capacity as
Presiding Judge, Regional Trial Court, Branch 9, Manila; THE
PEOPLE OF THE PHILIPPINES, represented by Spouses
REYNALDO and ZENAIDA ANZURES; and REYNALDO R. BUAZON,
In his official capacity as Sheriff IV, Regional Trial Court, Branch 9,
Manila, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a petition for review on certiorari, assailing the
Decision1 and Resolution2 of the Court of Appeals in CA-G.R. SP No.
58147, dated 16 June 2000 and 22 August 2000, respectively. The said
Decision and Resolution declared that there was no grave abuse of
discretion on the part of respondent Judge in issuing the assailed order
dated 31 March 2000, which was the subject in CA-G.R. SP No. 58147.
THE FACTS
The factual milieu of the instant case can be traced from this Courts
decision in G.R. No. 106214 promulgated on 05 September 1997.
On 26 August 1988, Reynaldo Anzures instituted a complaint against
Teresita Villaluz (Villaluz) for violation of Batas Pambansa Blg. 22. The
criminal information was brought before the Regional Trial Court, City of
Manila, and raffled off to Branch 9, then presided over by Judge
Edilberto G. Sandoval, docketed as Criminal Case No. 89-69257.
An Ex-Parte Motion for Preliminary Attachment3 dated 06 March 1989
was filed by Reynaldo Anzures praying that pending the hearing on the
merits of the case, a Writ of Preliminary Attachment be issued ordering

the sheriff to attach the properties of Villaluz in accordance with the

Rules.
On 03 July 1989, the trial court issued an Order4 for the issuance of a
writ of preliminary attachment "upon complainants posting of a bond
which is hereby fixed at P2,123,400.00 and the Courts approval of the
same under the condition prescribed by Sec. 4 of Rule 57 of the Rules of
Court."
An attachment bond5 was thereafter posted by Reynaldo Anzures and
approved by the court. Thereafter, the sheriff attached certain properties
of Villaluz, which were duly annotated on the corresponding certificates
of title.
On 25 May 1990, the trial court rendered a Decision6 on the case
acquitting Villaluz of the crime charged, but held her civilly liable. The
dispositive portion of the said decision is reproduced hereunder:
WHEREFORE, premises considered, judgment is hereby rendered
ACQUITTING the accused TERESITA E. VILLALUZ with cost de oficio.
As to the civil aspect of the case however, accused is ordered to pay
complainant Reynaldo Anzures the sum of TWO MILLION ONE
HUNDRED TWENTY THREE THOUSAND FOUR HUNDRED
(P2,123,400.00) PESOS with legal rate of interest from December 18,
1987 until fully paid, the sum of P50,000.00 as attorneys fees and the
cost of suit.7
Villaluz interposed an appeal with the Court of Appeals, and on 30 April
1992, the latter rendered its Decision,8the dispositive portion of which
partly reads:
WHEREFORE, in CA-G.R. CV No. 28780, the Decision of the Regional
Trial Court of Manila, Branch 9, dated May 25, 1990, as to the civil
aspect of Criminal Case No. 89-69257, is hereby AFFIRMED, in all
respects.

The case was elevated to the Supreme Court (G.R. No. 106214), and
during its pendency, Villaluz posted a counter-bond in the amount
of P2,500,000.00 issued by petitioner Security Pacific Assurance
Corporation.9Villaluz, on the same date10 of the counter-bond, filed an
Urgent Motion to Discharge Attachment.11
On 05 September 1997, we promulgated our decision in G.R. No.
106214, affirming in toto the decision of the Court of Appeals.
In view of the finality of this Courts decision in G.R. No. 106214, the
private complainant moved for execution of judgment before the trial
court.12
On 07 May 1999, the trial court, now presided over by respondent
Judge, issued a Writ of Execution.13
Sheriff Reynaldo R. Buazon tried to serve the writ of execution upon
Villaluz, but the latter no longer resided in her given address. This being
the case, the sheriff sent a Notice of Garnishment upon petitioner at its
office in Makati City, by virtue of the counter-bond posted by Villaluz with
said insurance corporation in the amount ofP2,500,000.00. As reported
by the sheriff, petitioner refused to assume its obligation on the counterbond it posted for the discharge of the attachment made by Villaluz.14
Reynaldo Anzures, through the private prosecutor, filed a Motion to
Proceed with Garnishment,15 which was opposed by
petitioner16 contending that it should not be held liable on the counterattachment bond.
The trial court, in its Order dated 31 March 2000,17 granted the Motion to
Proceed with Garnishment. The sheriff issued a Follow-Up of
Garnishment18 addressed to the President/General Manager of petitioner
dated 03 April 2000.

On 07 April 2000, petitioner filed a Petition for Certiorari with Preliminary

Injunction and/or Temporary Restraining Order19 with the Court of
Appeals, seeking the nullification of the trial courts order dated 31 March
2000 granting the motion to proceed with garnishment. Villaluz was also
named as petitioner. The petitioners contended that the respondent
Judge, in issuing the order dated 31 March 2000, and the sheriff
committed grave abuse of discretion and grave errors of law in
proceeding against the petitioner corporation on its counter-attachment
bond, despite the fact that said bond was not approved by the Supreme
Court, and that the condition by which said bond was issued did not
happen.20
On 16 June 2000, the Court of Appeals rendered a Decision,21 the
dispositive portion of which reads:
WHEREFORE, premises considered, the Court finds no grave abuse of
discretion on the part of respondent judge in issuing the assailed order.
Hence, the petition is dismissed.
A Motion for Reconsideration22 was filed by petitioner, but was denied for
lack of merit by the Court of Appeals in its Resolution23 dated 22 August
2000.
Undeterred, petitioner filed the instant petition under Rule 45 of the 1997
Rules of Civil Procedure, with Urgent Application for a Writ of Preliminary
Injunction and/or Temporary Restraining Order.24
On 13 December 2000, this Court issued a Resolution25 requiring the
private respondents to file their Comment to the Petition, which they did.
Petitioner was required to file its Reply26 thereafter.
Meanwhile, on 17 January 2001, petitioner and the spouses Reynaldo
and Zenaida Anzures executed a Memorandum of Understanding
(MOU).27 In it, it was stipulated that as of said date, the total amount
garnished from petitioner had amounted to P1,541,063.85, and so the

remaining amount still sought to be executed

wasP958,936.15.28 Petitioner tendered and paid the amount
of P300,000.00 upon signing of the MOU, and the balance
of P658,936.15 was to be paid in installment at P100,000.00 at the end
of each month from February 2001 up to July 2001. At the end of August
2001, the amount of P58,936.00 would have to be paid. This would
make the aggregate amount paid to the private
respondents P2,500,000.00.29 There was, however, a proviso in the
MOU which states that "this contract shall not be construed as a waiver
or abandonment of the appellate review pending before the Supreme
Court and that it will be subject to all such interim orders and final
outcome of said case."
On 13 August 2001, the instant petition was given due course, and the
parties were obliged to submit their respective Memoranda.30
ISSUES
The petitioner raises the following issues for the resolution of this Court:
Main Issue - WHETHER OR NOT THE COURT OF Appeals committed
reversible error in affirming the 31 march 2000 order of public
respondent judge which allowed execution on the counter-bond issued
by the petitioner.
Corollary Issues (1) WHETHER OR NOT THE COURT OF APPEALS
CORRECTLY RULED THAT THE ATTACHMENT ON THE PROPERTY
OF VILLALUZ WAS DISCHARGED WITHOUT NEED OF COURT
APPROVAL OF THE COUNTER-BOND POSTED; and (2) WHETHER
OR NOT THE COURT OF APPEALS CORRECTLY RULED THAT THE
ATTACHMENT ON THE PROPERTY OF VILLALUZ WAS
DISCHARGED BY THE MERE ACT OF POSTING THE COUNTERBOND.
THE COURTS RULING

Petitioner seeks to escape liability by contending, in the main, that the

writ of attachment which was earlier issued against the real properties of
Villaluz was not discharged. Since the writ was not discharged, then its
liability did not accrue. The alleged failure of this Court in G.R. No.
106214 to approve the counter-bond and to cause the discharge of the
attachment against Villaluz prevented the happening of a condition upon
which the counter-bonds issuance was premised, such that petitioner
should not be held liable thereon.31
Petitioner further asserts that the agreement between it and Villaluz is
not a suretyship agreement in the sense that petitioner has become an
additional debtor in relation to private respondents. It is merely waiving
its right of excussion32 that would ordinarily apply to counter-bond
guarantors as originally contemplated in Section 12, Rule 57 of the 1997
Rules.
In their Comment,33 the private respondents assert that the filing of the
counter-bond by Villaluz had already ipso facto discharged the
attachment on the properties and made the petitioner liable on the bond.
Upon acceptance of the premium, there was already an express contract
for surety between Villaluz and petitioner in the amount ofP2,500,000.00
to answer for any adverse judgment/decision against Villaluz.
Petitioner filed a Reply34 dated 09 May 2001 to private respondents
Comment, admitting the binding effect of the bond as between the
parties thereto. What it did not subscribe to was the theory that the
attachment was ipso facto or automatically discharged by the mere filing
of the bond in court. Such theory, according to petitioner, has no
foundation. Without an order of discharge of attachment and approval of
the bond, petitioner submits that its stipulated liability on said bond,
premised on their occurrence, could not possibly arise, for to hold
otherwise would be to trample upon the statutorily guaranteed right of
the parties to contractual autonomy.

Based on the circumstances present in this case, we find no compelling

reason to reverse the ruling of the Court of Appeals.
Over the years, in a number of cases, we have made certain
pronouncements about counter-bonds.
In Tijam v. Sibonghanoy,35 as reiterated in Vanguard Assurance Corp. v.
Court of Appeals,36 we held:
. . . [A]fter the judgment for the plaintiff has become executory and the
execution is returned unsatisfied, as in this case, the liability of the bond
automatically attaches and, in failure of the surety to satisfy the judgment
against the defendant despite demand therefore, writ of execution may
issue against the surety to enforce the obligation of the bond.
In Luzon Steel Coporation v. Sia, et al.: 37
. . . [C]ounterbonds posted to obtain the lifting of a writ of attachment is
due to these bonds being security for the payment of any judgment that
the attaching party may obtain; they are thus mere replacements of the
property formerly attached, and just as the latter may be levied upon
after final judgment in the case in order to realize the amount adjudged,
so is the liability of the countersureties ascertainable after the judgment
has become final. . . .
In Imperial Insurance, Inc. v. De Los Angeles,38 we ruled:
. . . Section 17, Rule 57 of the Rules of Court cannot be construed that
an "execution against the debtor be first returned unsatisfied even if the
bond were a solidary one, for a procedural may not amend the
substantive law expressed in the Civil Code, and further would nullify the
express stipulation of the parties that the suretys obligation should be
solidary with that of the defendant.
In Philippine British Assurance Co., Inc. v. Intermediate Appellate
Court,39 we further held that "the counterbond is intended to secure the

payment of any judgment that the attaching creditor may recover in the
action."
Petitioner does not deny that the contract between it and Villaluz is one
of surety. However, it points out that the kind of surety agreement
between them is one that merely waives its right of excussion. This
cannot be so. The counter-bond itself states that the parties jointly and
severally bind themselves to secure the payment of any judgment that
the plaintiff may recover against the defendant in the action. A surety is
considered in law as being the same party as the debtor in relation to
whatever is adjudged touching the obligation of the latter, and their
liabilities are interwoven as to be inseparable.40
Suretyship is a contractual relation resulting from an agreement whereby
one person, the surety, engages to be answerable for the debt, default or
miscarriage of another, known as the principal. The suretys obligation is
not an original and direct one for the performance of his own act, but
merely accessory or collateral to the obligation contracted by the
principal. Nevertheless, although the contract of a surety is in essence
secondary only to a valid principal obligation, his liability to the creditor or
promise of the principal is said to be direct, primary and absolute; in
other words, he is directly and equally bound with the principal. The
surety therefore becomes liable for the debt or duty of another although
he possesses no direct or personal interest over the obligations nor does
he receive any benefit therefrom.41
In view of the nature and purpose of a surety agreement, petitioner, thus,
is barred from disclaiming liability.
Petitioners argument that the mere filing of a counter-bond in this case
cannot automatically discharge the attachment without first an order of
discharge and approval of the bond, is lame.
Under the Rules, there are two (2) ways to secure the discharge of an
attachment. First, the party whose property has been attached or a

person appearing on his behalf may post a security. Second, said party
may show that the order of attachment was improperly or irregularly
issued.42 The first applies in the instant case. Section 12, Rule
57,43 provides:
SEC. 12. Discharge of attachment upon giving counter-bond. After a
writ of attachment has been enforced, the party whose property has
been attached, or the person appearing on his behalf, may move for the
discharge of the attachment wholly or in part on the security given. The
court shall, after due notice and hearing, order the discharge of the
attachment if the movant makes a cash deposit, or files a counter-bond
executed to the attaching party with the clerk of the court where the
application is made, in an amount equal to that fixed by the court in the
order of attachment, exclusive of costs. But if the attachment is sought to
be discharged with respect to a particular property, the counter-bond
shall be equal to the value of that property as determined by the court. In
either case, the cash deposit or the counter-bond shall secure the
payment of any judgment that the attaching party may recover in the
action. A notice of the deposit shall forthwith be served on the attaching
party. Upon the discharge of an attachment in accordance with the
provisions of this section, the property attached, or the proceeds of any
sale thereof, shall be delivered to the party making the deposit or giving
the counter-bond, or to the person appearing on his behalf, the deposit
or counter-bond aforesaid standing in place of the property so released.
Should such counter-bond for any reason be found to be or become
insufficient, and the party furnishing the same fail to file an additional
counter-bond, the attaching party may apply for a new order of
attachment.
It should be noted that in G.R. No. 106214, per our Resolution dated 15
January 1997,44 we permitted Villaluz to file a counter-attachment bond.
On 17 February 1997,45 we required the private respondents to comment
on the sufficiency of the counter-bond posted by Villaluz.

It is quite palpable that the necessary steps in the discharge of an

attachment upon giving counter-bond have been taken. To require a
specific order for the discharge of the attachment when this Court, in our
decision in G.R. No. 106214, had already declared that the petitioner is
solidarily bound with Villaluz would be mere surplusage. Thus:
During the pendency of this petition, a counter-attachment bond was
filed by petitioner Villaluz before this Court to discharge the attachment
earlier issued by the trial court. Said bond amounting to P2.5 million was
furnished by Security Pacific Assurance, Corp. which agreed to bind
itself "jointly and severally" with petitioner for "any judgment" that may be
recovered by private respondent against the former.46
We are not unmindful of our ruling in the case of Belisle Investment and
Finance Co., Inc. v. State Investment House, Inc.,47 where we held:
. . . [T]he Court of Appeals correctly ruled that the mere posting of a
counterbond does not automatically discharge the writ of attachment. It
is only after hearing and after the judge has ordered the discharge of the
attachment if a cash deposit is made or a counterbond is executed to the
attaching creditor is filed, that the writ of attachment is properly
discharged under Section 12, Rule 57 of the Rules of Court.
The ruling in Belisle, at first glance, would suggest an error in the
assailed ruling of the Court of Appeals because there was no specific
resolution discharging the attachment and approving the counter-bond.
As above-explained, however, consideration of our decision in G.R. No.
106214 in its entirety will readily show that this Court has virtually
discharged the attachment after all the parties therein have been heard
on the matter.
On this score, we hew to the pertinent ratiocination of the Court of
Appeals as regards the heretofore cited provision of Section 12, Rule 57
of the 1997 Rules of Civil Procedure, on the discharge of attachment
upon giving counter-bond:

. . . The filing of the counter-attachment bond by petitioner Villaluz has

discharged the attachment on the properties and made the petitioner
corporation liable on the counter-attachment bond. This can be gleaned
from the "DEFENDANTS BOND FOR THE DISSOLUTION OF
ATTACHMENT", which states that Security Pacific Assurance
Corporation, as surety, in consideration of the dissolution of the said
attachment jointly and severally, binds itself with petitioner Villaluz for
any judgment that may be recovered by private respondent Anzures
against petitioner Villaluz.
The contract of surety is only between petitioner Villaluz and petitioner
corporation. The petitioner corporation cannot escape liability by stating
that a court approval is needed before it can be made liable. This
defense can only be availed by petitioner corporation against petitioner
Villaluz but not against third persons who are not parties to the contract
of surety. The petitioners hold themselves out as jointly and severally
liable without any conditions in the counter-attachment bond. The
petitioner corporation cannot impose requisites before it can be
made liable when the law clearly does not require such requisites
to be fulfilled.48 (Emphases supplied.)
Verily, a judgment must be read in its entirety, and it must be construed
as a whole so as to bring all of its parts into harmony as far as this can
be done by fair and reasonable interpretation and so as to give effect to
every word and part, if possible, and to effectuate the intention and
purpose of the Court, consistent with the provisions of the organic law.49
Insurance companies are prone to invent excuses to avoid their just
obligation.50 It seems that this statement very well fits the instant case.
WHEREFORE, in view of all the foregoing, the Decision and Resolution
of the Court of Appeals dated 16 June 2000 and 22 August 2000,
respectively, are both AFFIRMED. Costs against petitioner.
SO ORDERED.

_______________
G.R. No. L-46180

August 30, 1938

ANACLETO R. TOLENTINO, petitioner,

vs.
JOSE R. CARLOS, Judge of First Instance of Benguet, Mountain
Province,
and COMMONWEALTH OF THE PHILIPPINES, respondents.
Fortunato de Leon for petitioner.
Solicitor-General Tuason for respondents.
IMPERIAL, J.:
This a petition for certiorari to set aside the writ of attachment issued by
the respondent judge in civil case No. 643 of the Court of First Instance
of the Mountain Province.
On February 11, 1938, the fiscal of the City of Baguio filed an information
against the petitioner charging him with malversation of public funds in
the City of Baguio, during the period from January 1 to February 8, 1938.
The information alleged that the petitioner being then the postmaster in
the post office of Baguio and an official of the Commonwealth of the
Philippines and having under his custody public funds in the amount of
P23,863.92 and postage stamps valued at P3,197.98, or a total of
P27,061.90, which funds and postage stamps belonged to the
Commonwealth of the Philippines, and being under the legal duty to
keep custody thereof, account therefor, and return the same in due time
to the said Government, willfully, illegally and criminally misappropriated
the said property, failed to account therefor, and took the same for his
own use and benefit. The criminal case thus filed against him was
docketed under No. 1602. On February 12, 1938, the said fiscal filed
against the same petitioner civil case No. 643 of the Court of First
Instance of Benguet, Mountain Province. The suit had for its purpose the
recovery from the petitioner of the same public funds and postage
stamps in the amount of P27,061.90. The complaint alleged that the
petitioner had under his custody the said public funds and postage
stamps in his capacity as postmaster of the Baguio post office, that as

such public official he was under a duty to account therefor and to return
the same to the Commonwealth of the Philippines, that he was required
to return and deliver the said property but he could not do so because he
took and misappropriated the same for his own use and benefit to the
prejudice of its owner. To secure a preliminary attachment of all the
property of the petitioner the complaint likewise alleged that the plaintiff
Commonwealth had a good cause of action against the petitioner, that
the obligation assumed by the latter was not sufficiently secured, that the
petitioner had misappropriated public property consisting of the money
sought to be recovered, and that he had disposed of his property or was
trying to alienate the same to defraud the Commonwealth of the
Philippines. At the end of the complaint Conrado Alcaraz, auditor of the
City of Baguio, made a verified statement stating that he had read the
allegations of the complaint and that the same were true according to his
best knowledge and belief. In view of the verified petition and allegations
of the complaint, the respondent judge issued the writ of attachment and
an officer of the court attached the petitioner's property. The latter moved
to dissolve the attachment, but the motion was denied.
The petitioner contends that the writ of attachment thus issued is null
and void because: (1) the affidavit in support thereof is insufficient and
fatally defective; (2) the Commonwealth of the Philippines did not file any
bond before issuing the attachment, as required by section 427 of the
Code of Civil Procedure; (3) the complaint filed in civil case No. 643
does not state any valid or legal cause of action inasmuch as under its
allegations the action brought, if any, was ex delicto, arising from the
crime of malversation of public funds alleged in the information filed in
criminal case No. 1602; and (4) the respondent judge did not acquire
jurisdiction, or acted without it, or abused his discretion in issuing the writ
of attachment.
1. The petition for attachment was included in the complaint which
was filed, and at the end of the latter appears the verified
statement of the auditor of the City of Baguio wherein he avers that
all the allegations of the complaint are true and correct to his
knowledge and belief. No petition or verified statement was filed
separately to obtain the attachment. The sworn statement of the
auditor necessarily covered the allegations of the complaint to the
effect that the petitioner was a postmaster and public official, that

he had the property described under his custody, that it was his
legal duty to account therefor and to return the same to the
Commonwealth, that he refused or he failed to return the same
upon demand, that he misappropriated the said property to the
prejudice of its owner, that the value of the property was not
sufficiently secured, and that the petitioner had disposed of his
property or was trying to alienate the same in fraud of the
Commonwealth of the Philippines. In this circumstances, we are of
the opinion, and so hold, that the verified statement was sufficient
and valid (section 424, in connection with 412 and 426, Code of
Civil Procedure; Cantral Capiz vs. Salas, 43 Phil., 930).
2. Section 427 of the Code of Civil Procedure provides that before
the issuance of a writ of attachment, the applicant therefor or any
person in his name, should file a bond in favor of the defendant for
an amount not less than P400 nor more than the amount of the
claim, answerable for damages in case it is shown that the
attachment was obtained illegally or without sufficient cause; but in
the case at bar the one who applied for and obtained the
attachment is the Commonwealth of the Philippines, as plaintiff,
and under the theory that the State is always solvent it was not
bound to post the required bond and the respondent judge did not
exceed his jurisdiction in exempting it from such requirement. It is
not necessary to discuss the validity of Act No. 3531, as amended
by Act No. 4108, because they both refer to the bond to be filed
when a third party claim is presented under an attachment levied in
execution of a judgment.
3. The principal ground of the petition is that, the obligation relied
upon in the civil action having arisen from the crime which gave
rise to the prosecution for malversation of public funds, the civil
action cannot be maintained until final judgment has been
rendered in the criminal case. Article 1089 of the Civil Code
provides that obligations are created by law, by contract, by quasicontract, and by acts or ommissions or by those in which any kind
of fault or negligence occurs; and article 1092 provides that civil
obligations arising from crimes or misdemeanors shall be governed
by the provisions of the Penal Code. Article 114 of the Spanish
Criminal Procedure, enforced in this jurisdiction in a supplementary

character (Rakes vs. Atlantic, Gulf & Pacific Co., 7 Phil., 359;
Almeda Chan Tanco vs. Abaroa, 8 Phil., 178; 218 U. S., 476; 54
Law. ed., 1116; 40 Phil., 1056; U. S. vs. Namit, 38 Phil., 926; Alba
vs. Acuna and Frial, 53 Phil., 380), provides that "when a criminal
proceedings is instituted for the judicial investigation of a crime or
misdemeanor, no civil action arising from the same act can be
prosecuted; but the same shall be suspended, if there be one, in
whatever stage or state it may be found, until final sentence in the
criminal proceedings is pronounced." The petitioner relies upon
these provisions, especially the latter, in contending that the civil
action does not lie and that there being no cause of action in the
civil suit filed by the Commonwealth, the latter is not entitled to the
writ of attachment. Inasmuch as the prohibition in article 114 that
no civil action be brought when a criminal action has been filed, is
conditioned upon the circumstance that the former is based upon
the same fact as that of the criminal action, it is necessary to
ascertain if the action brought by the Commonwealth in the civil
case is based upon the same facts which constitute the crime of
malversation of public funds which is the basis of the criminal case.
In the complaint filed in the civil case, it is alleged, as already
stated, that the petitioner was a postmaster and public official who
had custody of the property sought to be recovered, charged with
the legal duty to return and deliver the same upon demand to the
Commonwealth of the Philippines, and that he refused to return
and deliver said property when he was required to do so by the
auditor of the City of Baguio. These allegation alone constitute
sufficient cause of action under section 633 of the Revised
Administrative Code providing that every officer of the Government
of the Philippine Islands whose duties permit or require the
possession or custody of Government funds or property of shall be
accountable and directly responsible therefor. It is true that the
complaint sets out allegations which are substantially a
reproduction of those in the information for malversation of public
funds filed in the criminal case, but these allegations, in connection
with the civil action, are unnecessary and may be overlooked. The
complaint could have been demurred to on the ground of ambiguity
because it alleged two different and independent causes of action;
but as no demurrer was interposed and as the complaint was not

ordered amended, the Commonwealth mat try to prove and confine

itself to the action ex lege by abandoning the action ex delicto.
4. The respondent judge had full jurisdiction to issue the
attachment applied for in the civil case (section 425 of the Code of
Civil Procedure) and he did not abuse the discretion conferred
upon him by law in granting the writ because the plaintiff
Commonwealth had complied with the requirements of sections
424, in connection with 412 and 426 of the Code of Civil
Procedure.
For the foregoing reasons, the writ prayed for is denied, with the costs to
the petitioner. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Diaz and Laurel, JJ., concur.

Separate Opinions
CONCEPCION, J., concurring and dissenting:
I concur with the majority as to the dispositive part of the foregoing
decision, but I cannot subscribe to the view that the action brought by
the fiscal of the City of Baguio against the petitioner is civil in nature, with
a life of its own independent of the criminal liability arising from the crime
of malversation of public funds committed by the said petitioner while he
was postmaster of the Baguio post office. Granting the allegations of the
complaint, which we cannot disregard as they are really material, the
action sought to be enforced therein is properly a civil action based upon
the criminal liability arising from the crime with which the petitioner was
charged in the information lodged in the Court of First Instance of the
Mountain Province. Nonetheless I am of the opinion that,
notwithstanding the filing of the criminal action one day before the
presentation of the complaint in the civil case to recover from the
petitioner, defendant in said case, the same public funds and postage
stamps valued at P27,061.90, the filing of the said complaint is perfectly
legal inasmuch as it is not prohibited by any law. Article 114 of the
Spanish Criminal Procedure of 1882, applicable in the Philippines in a

supplementary character, as provided in section 1 of general Orders, No.

58 and rule 95 of the Provisional Law for the application of the former
Penal Code (see citations in majority decision), reads as follows:
1vvphl.nt

Art. 114. When a criminal proceedings is instituted for the judicial

investigation of a crime or misdemeanor, no civil action arising from
the same act can be prosecuted; but the same shall be suspended,
if there be one, in whatever stage or state it may be found, until
final sentence in the criminal proceedings is pronounced.
The underlined portion clearly shows the nerve center of the legal
provision: it prohibits the prosecution of a civil action upon the same fact
which has given rise to the criminal action for the judicial investigation of
a crime or misdemeanor; but it does not prohibit the simple filing of a civil
complaint. If the complaint had already action, its prosecution should be
suspended, and the same thing, in my humble opinion, should be done if
the civil action had been instituted, as in the present case, one day after
the presentation of the information. What the law seeks to avoid with the
aforesaid prohibition is the existence of two contradictory judgments, that
is, the judgment in the criminal case and that in the civil case, inasmuch
as there should be substantial agreement between the one and the other
under the provisions of article 742 of the Spanish Criminal Procedure,
reading:
ART. 742. In said judgment there shall be decided all questions
arising in the trial, and the accused shall be condemned or
acquitted not only of the principal offense and offenses connected
therewith but also of any incidental misdemeanors which may have
been proven in the case; and the tribunal, at this stage of the
proceedings, can not dismiss the case in respect to the accused
persons who ought not to be condemned.
All questions referring to civil liability and responsibility which arise
in the trial shall also be decided in the said judgment.
(See Almeida Chan Tanco vs. Abaroa, 8 Phil., 178; 218 U. S., 476; 54
Law. ed., 1116; 40 Phil., 1056.)

I am, therefore, of the opinion that what is prohibited is

the prosecution of the civil action, while the criminal case is pending; but
not the filing of the complaint, before or one day after the presentation of
the information.
To hold otherwise would be to frustrate or hold in ridicule the ends of
justice and of equity. If the civil complaint could not or filed one day after
the presentation of the information, and there being no way to ask for the
attachment of the property of the accused in the criminal case (U.
S. vs. Namit, 38 Phil., 926), nor of the appointment of a receiver, as a
result of the filing of the complaint, remedies which may be necessary to
guarantee the execution of said judgment in due time, the civil action
would turn out to be a myth or a joke injurious to the rights of the
offended party should a decision be rendered against the defendant and
the same cannot be executed because the plaintiff was not seasonably
permitted to secure its execution.