EN BANC
[G.R. No. 5200. March 11, 1909. ]
VICENTE BANDOY AND VICENTA SALAMANCA, Plaintiffs, v. THE JUDGE OF THE COURT OF FIRST INSTANCE LA LAGUNA AND THE SHERIFF OF THE SAME PROVINCE, Defendants.
Silvestre Apacible, for Plaintiffs.
Vicente Jocson and Mariano Manalo, on their own behalf.
SYLLABUS
1. Pleading and Practice; Sureties; Appeal from an Order Directing Execution of Judgment. — An appeal will lie, by sureties on an appeal bond, from an order made by a Court of First Instance in a criminal case after judgment directing that an execution issue against the sureties for the collection of a fine imposed upon the defendant.
D E C I S I O N
WILLARD, J.:
This is an original action of mandamus brought in this court to compel the judge of the Court of First Instance of the Province of La Laguna to admit an appeal in a criminal case.
Felix de Lagrimas was, on the 9th day of September, 1907, convicted of the crime of allanamiento de morada in that court and was sentenced to two months and one day of arresto mayor and the payment of a fine of P260. He appealed to the Supreme Court and gave a bond which was assigned by the plaintiffs in this action. The bond was in the form prescribed by law for such cases. The judgment of the court below having been affirmed by this court, Felix de Lagrimas, the accused, was delivered by the plaintiffs, the sureties on his bond, to the court for the fulfillment of the sentence. He was confined in jail for the time mentioned in the sentence and at the expiration thereof was released. He has never paid the fine imposed by that judgment.
Thereafter and on the 23d day of November, 1908, that court ordered an execution to issue against the sureties for the purpose of collecting the fine not paid by the accused. They appeared in that court and asked that order be revoked, which petition was denied. They thereupon gave notice of appeal to this court from that order, but the court refused to admit the appeal.
The question before us is not whether the sureties are liable on this bond for the payment of the fine, but whether they are entitled to have this question concerning their liability argued and decided in this court. Section 44 of General Orders, No. 58, provides, in part, as follows:jgc:chanrobles.com.ph
"Either party may appeal from a final judgment or from an order made after judgment affecting the substantial rights of the appellant or in any case now permitted by law."cralaw virtua1aw library
The case of Melchor Babasa against the judge of the Court of First Instance of Batangas, 1 No. 3026, decided on the 27th of April, 1906, was a proceeding similar to this. In that case the court below had ordered an execution to issue against the sureties on a bond given for the appearance of a defendant in a criminal cause. The court refused to allow them an appeal from that order; they commenced an action of mandamus in this court for the purpose of securing such appeal, and it was held that they were entitled thereto. That case is decisive of this one. We have also held that in civil cases the action of the court below in enforcing a final judgment against sureties upon an appeal bond may be reviewed by this court. (Molina v. De la Riva, 7 Phil. Rep., 345; see also Molina v. De la Riva, 8 Phil. Rep., 569.)
Judgment will be entered in favor of the plaintiffs and against the defendants, directing the defendant judge to admit the appeal prayed for, and it is further ordered that the preliminary injunction heretofore issued in this cause be continued to force until the final determination of the appeal which is hereby allowed. No costs will be allowed to either party. So ordered.
Arellano, C.J., Torres, Mapa, Johnson and Carson, JJ., concur.
Felix de Lagrimas was, on the 9th day of September, 1907, convicted of the crime of allanamiento de morada in that court and was sentenced to two months and one day of arresto mayor and the payment of a fine of P260. He appealed to the Supreme Court and gave a bond which was assigned by the plaintiffs in this action. The bond was in the form prescribed by law for such cases. The judgment of the court below having been affirmed by this court, Felix de Lagrimas, the accused, was delivered by the plaintiffs, the sureties on his bond, to the court for the fulfillment of the sentence. He was confined in jail for the time mentioned in the sentence and at the expiration thereof was released. He has never paid the fine imposed by that judgment.
Thereafter and on the 23d day of November, 1908, that court ordered an execution to issue against the sureties for the purpose of collecting the fine not paid by the accused. They appeared in that court and asked that order be revoked, which petition was denied. They thereupon gave notice of appeal to this court from that order, but the court refused to admit the appeal.
The question before us is not whether the sureties are liable on this bond for the payment of the fine, but whether they are entitled to have this question concerning their liability argued and decided in this court. Section 44 of General Orders, No. 58, provides, in part, as follows:jgc:chanrobles.com.ph
"Either party may appeal from a final judgment or from an order made after judgment affecting the substantial rights of the appellant or in any case now permitted by law."cralaw virtua1aw library
The case of Melchor Babasa against the judge of the Court of First Instance of Batangas, 1 No. 3026, decided on the 27th of April, 1906, was a proceeding similar to this. In that case the court below had ordered an execution to issue against the sureties on a bond given for the appearance of a defendant in a criminal cause. The court refused to allow them an appeal from that order; they commenced an action of mandamus in this court for the purpose of securing such appeal, and it was held that they were entitled thereto. That case is decisive of this one. We have also held that in civil cases the action of the court below in enforcing a final judgment against sureties upon an appeal bond may be reviewed by this court. (Molina v. De la Riva, 7 Phil. Rep., 345; see also Molina v. De la Riva, 8 Phil. Rep., 569.)
Judgment will be entered in favor of the plaintiffs and against the defendants, directing the defendant judge to admit the appeal prayed for, and it is further ordered that the preliminary injunction heretofore issued in this cause be continued to force until the final determination of the appeal which is hereby allowed. No costs will be allowed to either party. So ordered.
Arellano, C.J., Torres, Mapa, Johnson and Carson, JJ., concur.
Endnotes:
1. 12 Phil. Rep., 766.
