EN BANC
[G.R. No. 3666. August 17, 1909. ]
THE CITY OF MANILA, Plaintiff-Appellant, v. FRANCISCO GAMBE, ET AL., Defendants-Appellees.
Modesto Reyes, for Appellant.
Del-Pan, Ortigas & Fisher, for Appellees.
SYLLABUS
1. ATTACHMENT; DEBTS AND DEBTORS; PROPERTY SUBJECT TO ATTACHMENT UNDER SECTION 431, CODE OF CIVIL PROCEDURE. — G., a pilot and member of the Pilots’ Association of the port of Manila, while in charge of a certain steamship as such pilot, by negligence caused an injury to the "Spanish Bridge," property belonging to the city of Manila. The city brought an action against G. and secured a judgment for the amount of damages. An execution was issued against G. and returned unsatisfied. G., when he became a member of the Pilots’ Association, as all of the members did, paid into the funds of said association the sum of P800. This fund, according to the rules and regulations of the association, was held by the association for the purpose of answering for damages caused by its members to ships. The city of Manila attempted, under the provisions of section 431 of the Code of Procedure in Civil Actions, to attach the funds of the association for the payment of its claim against G. : Held, That the funds of the association did not constitute a debt, credit, or personal property, belonging to G., subject to be attached under said section 431. The question whether the city of Manila could maintain a special action against the association for the purpose of recovering damages for the injury complained of is not decided.
2. PROPERTY ID.; ID.; ID.; THE WORDS "CREDIT," "DEBT," "PERSONAL." — "Debt" as used in section 431, Code of Civil Procedure, means some definite amount of money, ascertained or capable of being ascertained, which may be paid over to the sheriff or to the court under an order, while "credits" and "personal property" are something belonging to the defendant, but in possession and under the control of the person attached. The debt, credit, or personal property which is attempted to be subjected to the payment of the obligation of the defendant and which is alleged to be in the possession of the person attached, must exist in some definite and ascertainable form at the time of the attachment.
2. PROPERTY ID.; ID.; ID.; THE WORDS "CREDIT," "DEBT," "PERSONAL." — "Debt" as used in section 431, Code of Civil Procedure, means some definite amount of money, ascertained or capable of being ascertained, which may be paid over to the sheriff or to the court under an order, while "credits" and "personal property" are something belonging to the defendant, but in possession and under the control of the person attached. The debt, credit, or personal property which is attempted to be subjected to the payment of the obligation of the defendant and which is alleged to be in the possession of the person attached, must exist in some definite and ascertainable form at the time of the attachment.
D E C I S I O N
JOHNSON, J.:
From the record the following facts appear:chanrob1es virtual 1aw library
First. That upon the 31st day of August, 1903, the plaintiff commenced an action in the Court of First Instance of the city of Manila against the defendants, Francisco Gambe, Manuel Perez, Antonio Herranz, and Florencio Garriz, who constitute the commercial firm of Herranz & Garriz, for the purpose of recovering the sum of five thousand dollars ($5,000), United States currency, for certain damages occasioned by the steamship Alfred to the "Spanish Bridge" in the city of Manila.
Second. After a consideration of the facts adduced during the trial, the Honorable Judge Rhode, then one of the judges of the Court of First Instance of the city of Manila, rendered a judgment against the said Francisco Gambe, for the sum of $1,300 United States currency, and for the costs.
Third. Francisco Gambe was a pilot and a member of the Pilots’ Association of Manila and was at the time of the alleged accident and injury in charge of the said steamship Alfred. Judge Rohde dismissed the cause as to the other defendants.
Fourth. From this judgment of the lower court the defendant Gambe appealed to the Supreme Court.
Fifth. After a consideration of the facts, the Supreme Court on the 31st day of March, 1906, affirmed with costs the judgment of the lower court. (See City of Manila v. Gambe, 6 Phil. Rep., 49.)
Sixth. The judgment thus affirmed was returned to the lower court for an execution of the same.
Seventh. On the 26th day of May, 1906, an execution was issued upon the said judgment against the said defendant, Francisco Gambe, and was returned upon the 23d day of June, 1906, unsatisfied.
Eighth. Later, upon 11th day of July, 1906, another execution was issued out of the Court of First Instance against the defendant, Francisco Gambe, which was returned upon the 17th day of August, 1906, unsatisfied.
Ninth. On the same day, or the 11th day of July, 1906, in accordance with the provisions of section 431 of the Code of Procedure in Civil Actions, the plaintiff attempted to attach whatever money or effects which the defendant had in the said Pilot’s Association of Manila. These attachments were directed to the Hongkong and Shanghai Banking Corporation, the Hon. W Morgan Shuster, Collector of Customs, as well as Francisco Aguado, who was the chief of the said Pilots’ Association.
Tenth. On the 22nd day of August, 1906, the attorney for the plaintiff presented in the lower court the following affidavit:jgc:chanrobles.com.ph
"Edmond Block, being duly sworn, says:jgc:chanrobles.com.ph
"That he is the attorney for the plaintiff in the above-entitled action.
"That a judgment was duly entered and docketed in the said action in the said court on the 20th day of April, 1906, for the sum of thirteen hundred dollars ($1,300), United States currency, and costs, against the above-named defendant, in favor of the plaintiff.
"That an execution upon said judgment was duly issued against the property of said judgment debtor.
"That the said judgment debtor now resides in the said city of Manila.
"That the sheriff of the city of Manila has returned said execution wholly unsatisfied, and that the said judgment still remains wholly unpaid.
"That affiant is informed and believes that an organization or association known as the ’Manila Pilots’ Association, of which Francisco Aguado is the chief pilot, Manuel Goitia is the treasurer and custodian of its funds, and of which W. Morgan Shuster, Francisco Gambe, and other pilots of the port of Manila are members, has property in its possession dedicated to an for the purpose of payment of damages caused through negligence of the pilots of said association, or any of them, to third persons.
"That the said association has in its possession and under its control, property of the said judgment debtor, exceeding eight hundred pesos (P800), Philippine currency, and is indebted to the said judgment debtor in an amount exceeding eight hundred pesos (P800), Philippine currency.
"That the said indebtedness to said judgment debtor arose through this, that the said judgment debtor has deposited with the said association the said amount exceeding eight hundred pesos (P800), Philippine currency, and that the said association now holds the said amount subject to the order of said judgment debtor, and that the said amount should be applied, affiant believes, to the payment or satisfaction of the judgment debtor.
"That on the 23d day of June and 11th of July, 1906, the said Pilots’ Association, through the chief pilot, the treasurer of said association. W. Morgan Shuster, and Francisco Gambe, was duly notified and each of the above-mentioned persons were so duly notified by the sheriff of the city of Manila, that attachment was levied against all the goods, effects, interests, credits or money belonging to the defendant, in the possession of said association and persons, to cover the amount of two thousand six hundred and seventy pesos (2,670), Philippine currency, and to make immediate payment of said goods, effects, interests, credits, or money and forward same to the sheriff.
"That all of the above-mentioned persons denied having in their possession, and refused to deliver any such said goods, effects, interests, credits, or money belonging to said defendant.
"Wherefore deponent prays an order of this court that the said Francisco Agudao, Francisco Gambe, Manuel Goitia, and W. Morgan Shuster, be and appear and answer as the indebtedness of the said Pilots’ Association to said judgment debtor, at a time and place by said court to be specified."cralaw virtua1aw library
(Signed) "Edmond Block.
"Subscribed and sworn to before me this 22d day of August, 1906, exhibiting in the act cedula No. 1755565, dated Manila, June 6, 1906.
(Signed) "MODESTO REYES,
"Notary Public.
"Commission expires December 31, 1906."
Upon this affidavit, the Hon. A.S. Crossfield, one of the judges of the Court of First Instance of the city of Manila, made the following order:jgc:chanrobles.com.ph
"On reading the foregoing affidavit, it satisfactorily appearing to me therefrom that the Manila Pilots’ Association has property of Francisco Gambe, the defendant in the above-entitled action, which property ought to be applied toward the satisfaction Aguado is the chief pilot, Manuel Goitia the treasurer, and Francisco Gambe and W. Morgan Shuster are members of said association, and that it is proper cause for this order, I, the undersigned, judge of the Court of First Instance of the city of Manila, Philippine Islands, do hereby order the said Francisco Aguado, Francisco Gambe, Manuel Goitia, and W. Morgan Shuster personally to appear before me in the said city of Manila, on the 10th day of September, at 10 o’clock in the morning of that day, to answer concerning the said property."cralaw virtua1aw library
Eleventh. In accordance with the above order, the said parties appeared before the said court and testified relating to the money, property, credits or effects which the said Pilots’ Association had in its possession belonging to the said defendants.
After hearing the evidence of these parties, the said Hon. A.S. Crossfield rendered the following judgment:jgc:chanrobles.com.ph
"This case is now before the court for hearing the order directing Francisco Aguado as chief pilot, Manuel Goitia as treasurer, and Francisco Gambe and W. Morgan Shuster as members of the Pilots’ Association to answer as to any property they may have in their possession or under their control, belonging to the defendant, Francisco Gambe. Execution having been issued in the above-entitled action and the above named respondents having been attached, as in garnishee proceedings, all of the above-named respondents appeared and the two first-named made declarations as to the property in their hands.
"From the declaration made it appears:jgc:chanrobles.com.ph
"That each member of the Pilots’ Association before becoming such, must deposit with the association the sum of P800, to be retained by the association for the purpose of satisfying damages which may be incurred by others by reason of negligence or fault on the part of the association in the transaction of its business.
"It further appears from the declarations that persons thus depositing the money could not withdraw it; that it is property of the association and may not be withdrawn, even in case of the death of a member, and that said Francisco Gambe is a member.
"I therefore find that the above-named respondents, either as officers of the association or members thereof, have not in their control, nor do they possess any property, money or effects which would be the subject of a levy under execution against said Gambe, and the order to appear is discharged."cralaw virtua1aw library
From this decision of the lower court the plaintiff appealed and made the allowing assignments of error in this court:jgc:chanrobles.com.ph
"1. The court below erred in deciding that the sum of P800, Philippine currency, deposited by the defendant, Gambe, with the Pilots’ Association could not be withdrawn by him:
First. That upon the 31st day of August, 1903, the plaintiff commenced an action in the Court of First Instance of the city of Manila against the defendants, Francisco Gambe, Manuel Perez, Antonio Herranz, and Florencio Garriz, who constitute the commercial firm of Herranz & Garriz, for the purpose of recovering the sum of five thousand dollars ($5,000), United States currency, for certain damages occasioned by the steamship Alfred to the "Spanish Bridge" in the city of Manila.
Second. After a consideration of the facts adduced during the trial, the Honorable Judge Rhode, then one of the judges of the Court of First Instance of the city of Manila, rendered a judgment against the said Francisco Gambe, for the sum of $1,300 United States currency, and for the costs.
Third. Francisco Gambe was a pilot and a member of the Pilots’ Association of Manila and was at the time of the alleged accident and injury in charge of the said steamship Alfred. Judge Rohde dismissed the cause as to the other defendants.
Fourth. From this judgment of the lower court the defendant Gambe appealed to the Supreme Court.
Fifth. After a consideration of the facts, the Supreme Court on the 31st day of March, 1906, affirmed with costs the judgment of the lower court. (See City of Manila v. Gambe, 6 Phil. Rep., 49.)
Sixth. The judgment thus affirmed was returned to the lower court for an execution of the same.
Seventh. On the 26th day of May, 1906, an execution was issued upon the said judgment against the said defendant, Francisco Gambe, and was returned upon the 23d day of June, 1906, unsatisfied.
Eighth. Later, upon 11th day of July, 1906, another execution was issued out of the Court of First Instance against the defendant, Francisco Gambe, which was returned upon the 17th day of August, 1906, unsatisfied.
Ninth. On the same day, or the 11th day of July, 1906, in accordance with the provisions of section 431 of the Code of Procedure in Civil Actions, the plaintiff attempted to attach whatever money or effects which the defendant had in the said Pilot’s Association of Manila. These attachments were directed to the Hongkong and Shanghai Banking Corporation, the Hon. W Morgan Shuster, Collector of Customs, as well as Francisco Aguado, who was the chief of the said Pilots’ Association.
Tenth. On the 22nd day of August, 1906, the attorney for the plaintiff presented in the lower court the following affidavit:jgc:chanrobles.com.ph
"Edmond Block, being duly sworn, says:jgc:chanrobles.com.ph
"That he is the attorney for the plaintiff in the above-entitled action.
"That a judgment was duly entered and docketed in the said action in the said court on the 20th day of April, 1906, for the sum of thirteen hundred dollars ($1,300), United States currency, and costs, against the above-named defendant, in favor of the plaintiff.
"That an execution upon said judgment was duly issued against the property of said judgment debtor.
"That the said judgment debtor now resides in the said city of Manila.
"That the sheriff of the city of Manila has returned said execution wholly unsatisfied, and that the said judgment still remains wholly unpaid.
"That affiant is informed and believes that an organization or association known as the ’Manila Pilots’ Association, of which Francisco Aguado is the chief pilot, Manuel Goitia is the treasurer and custodian of its funds, and of which W. Morgan Shuster, Francisco Gambe, and other pilots of the port of Manila are members, has property in its possession dedicated to an for the purpose of payment of damages caused through negligence of the pilots of said association, or any of them, to third persons.
"That the said association has in its possession and under its control, property of the said judgment debtor, exceeding eight hundred pesos (P800), Philippine currency, and is indebted to the said judgment debtor in an amount exceeding eight hundred pesos (P800), Philippine currency.
"That the said indebtedness to said judgment debtor arose through this, that the said judgment debtor has deposited with the said association the said amount exceeding eight hundred pesos (P800), Philippine currency, and that the said association now holds the said amount subject to the order of said judgment debtor, and that the said amount should be applied, affiant believes, to the payment or satisfaction of the judgment debtor.
"That on the 23d day of June and 11th of July, 1906, the said Pilots’ Association, through the chief pilot, the treasurer of said association. W. Morgan Shuster, and Francisco Gambe, was duly notified and each of the above-mentioned persons were so duly notified by the sheriff of the city of Manila, that attachment was levied against all the goods, effects, interests, credits or money belonging to the defendant, in the possession of said association and persons, to cover the amount of two thousand six hundred and seventy pesos (2,670), Philippine currency, and to make immediate payment of said goods, effects, interests, credits, or money and forward same to the sheriff.
"That all of the above-mentioned persons denied having in their possession, and refused to deliver any such said goods, effects, interests, credits, or money belonging to said defendant.
"Wherefore deponent prays an order of this court that the said Francisco Agudao, Francisco Gambe, Manuel Goitia, and W. Morgan Shuster, be and appear and answer as the indebtedness of the said Pilots’ Association to said judgment debtor, at a time and place by said court to be specified."cralaw virtua1aw library
(Signed) "Edmond Block.
"Subscribed and sworn to before me this 22d day of August, 1906, exhibiting in the act cedula No. 1755565, dated Manila, June 6, 1906.
(Signed) "MODESTO REYES,
"Notary Public.
"Commission expires December 31, 1906."
Upon this affidavit, the Hon. A.S. Crossfield, one of the judges of the Court of First Instance of the city of Manila, made the following order:jgc:chanrobles.com.ph
"On reading the foregoing affidavit, it satisfactorily appearing to me therefrom that the Manila Pilots’ Association has property of Francisco Gambe, the defendant in the above-entitled action, which property ought to be applied toward the satisfaction Aguado is the chief pilot, Manuel Goitia the treasurer, and Francisco Gambe and W. Morgan Shuster are members of said association, and that it is proper cause for this order, I, the undersigned, judge of the Court of First Instance of the city of Manila, Philippine Islands, do hereby order the said Francisco Aguado, Francisco Gambe, Manuel Goitia, and W. Morgan Shuster personally to appear before me in the said city of Manila, on the 10th day of September, at 10 o’clock in the morning of that day, to answer concerning the said property."cralaw virtua1aw library
Eleventh. In accordance with the above order, the said parties appeared before the said court and testified relating to the money, property, credits or effects which the said Pilots’ Association had in its possession belonging to the said defendants.
After hearing the evidence of these parties, the said Hon. A.S. Crossfield rendered the following judgment:jgc:chanrobles.com.ph
"This case is now before the court for hearing the order directing Francisco Aguado as chief pilot, Manuel Goitia as treasurer, and Francisco Gambe and W. Morgan Shuster as members of the Pilots’ Association to answer as to any property they may have in their possession or under their control, belonging to the defendant, Francisco Gambe. Execution having been issued in the above-entitled action and the above named respondents having been attached, as in garnishee proceedings, all of the above-named respondents appeared and the two first-named made declarations as to the property in their hands.
"From the declaration made it appears:jgc:chanrobles.com.ph
"That each member of the Pilots’ Association before becoming such, must deposit with the association the sum of P800, to be retained by the association for the purpose of satisfying damages which may be incurred by others by reason of negligence or fault on the part of the association in the transaction of its business.
"It further appears from the declarations that persons thus depositing the money could not withdraw it; that it is property of the association and may not be withdrawn, even in case of the death of a member, and that said Francisco Gambe is a member.
"I therefore find that the above-named respondents, either as officers of the association or members thereof, have not in their control, nor do they possess any property, money or effects which would be the subject of a levy under execution against said Gambe, and the order to appear is discharged."cralaw virtua1aw library
From this decision of the lower court the plaintiff appealed and made the allowing assignments of error in this court:jgc:chanrobles.com.ph
"1. The court below erred in deciding that the sum of P800, Philippine currency, deposited by the defendant, Gambe, with the Pilots’ Association could not be withdrawn by him:
