SECOND DIVISION
[G.R. No. L-19620. August 29, 1975.]
IN THE MATTER OF THE INTESTATE ESTATE OF TIRSO LORENZO (TAN CHIU) & CECILIA ALBA, deceased. TAN SEE SENG & IGNACIO LORENZO, Petitioners-Appellees, v. LUZON SURETY COMPANY, INC., claimant-appellant.
Tolentino, Garcia & D.R. Cruz for Appellant.
Climaco & Associates for Appellee.
SYNOPSIS
In an action for replevin, plaintiff Tan Gin San, as principal, and Luzon Surety Co. Inc., as surety, executed a bond, An indemnity agreement was likewise executed by Tan Gin San, Narciso Tan and Tirso Lorenzo in favor of the surety binding themselves jointly and severally to pay the surety premium on plaintiff’s bond and to indemnify said surety of whatever expenses the latter may incur in consequence of its being a surety upon the bond. During the tendency of the case, Tirso Lorenzo died and intestate proceedings were instituted. Luzon Surety filed with the probate court a claim for payment which was denied. The surety appealed on the ground that the bond co-exist with the pendency of the action for replevin.
The Supreme Court dismissed the appeal for being moot and academic since the action for replevin had already been dismissed as certified by the clerk of court.
The Supreme Court dismissed the appeal for being moot and academic since the action for replevin had already been dismissed as certified by the clerk of court.
SYLLABUS
1. ACTIONS; REPLEVIN; DISMISSAL; RENDERS MOOT AND ACADEMIC APPEAL INTERPOSED BU SURETY ON BOND IN REPLEVIN. — To recover the amount of the bond executed in a replevin case, the surety filed a claim in the proceedings to settle the estate of one liable to him under the indemnity agreement executed in its favor as surety, which was denied. The surety appealed. Meanwhile, the replevin case was dismissed. HELD. The dismissal of the replevin case in the Court of First Instance renders moot and academic the appeal interposed by the surety on the bond in that case.
D E C I S I O N
CONCEPCION, JR., J.:
This is an appeal interposed by the Luzon Surety Company, Inc. from the judgment of the Court of First Instance of Zamboanga dismissing its claim in Special Case No. 485.
It appears that on May 18, 1956, Tan Gin San, plaintiff in Civil Case No. 610 of Zamboanga, 1 as principal, and the Luzon Surety Co., Inc., as surety, executed a "Plaintiff’s Bond for Manual Delivery of Personal Property" in the amount of P144,000.00 for the prosecution of the action, the return of the property to the defendant if return be adjudged, the payment to defendant of such sums as may be recovered from the plaintiff, and the costs of the action. On that same date, Tan Gin San, Narciso A. Tan, and Tirso Lorenzo executed an Indemnity Agreement, in favor of the Luzon Surety Co., Inc., binding themselves; jointly and severally, to pay the said surety company the sum of P3,000.00, as premium on the plaintiff’s bond, and to indemnify the said surety company and save it harmless against any and all damages, losses, costs, stamps, taxes, penalties, charges, and expenses of whatever kind and nature which the surety company shall sustain or incur in consequence of its having become the surety upon the said plaintiff’s bond.
On November 16, 1956, upon the filing of a counterbond by defendant Rosalia Tan, in said Civil Case No. 610, the Court of First Instance of Zamboanga issued an Order for the return of the property in question to the said defendant, and on January 3, 1957, the Sheriff turned over the possession of the property to the defendant Rosalia A. Tan.
Tirso Lorenzo died during the pendency of said Civil Case No. 610 and Special Case No. 485 was instituted to settle his estate.
On August 8, 1957, the Luzon Surety Co. Inc. filed a claim with the probate court for payment of the sum of P144,000.00, plus interest thereon and attorney’s fees, as well as the sum of P3,045.00 per annum as premium and stamps for the plaintiff’s bond, commencing from May 18, 1957 until the said bond is cancelled and the surety company relieved from liability.
Tan See Seng, administratrix of the Intestate Estate of the late Tirso Lorenzo, opposed the claim on the ground that the bond in question had already been released because the building referred to in the bond had been returned to the defendant in Civil Case No. 610.
On June 6, 1961, after a hearing, the probate court issued an order dismissing the claim of the surety company. A motion to reconsider this order was filed by the surety company, but the said motion for reconsideration was denied.
Hence, this appeal.
The principal contention of the claimant-appellant surety company is that the plaintiff’s bond co-exists with the pendency of Civil Case No. 610 wherein it is filed and is not cancelled by the filing of a counterbond by the defendant and the return of the property seized, and since Civil Case No. 610 is still pending and the risk for which the bond had been filed still exists, the estate of the late Tirso Lorenzo may be held liable for the contingent claim and unpaid premiums on the bond under the terms of the indemnity agreement.
The appellees upon the other hand maintain that the cancellation of the plaintiff’s bond and the indemnity agreement was effected not only by the express request of the plaintiff in Civil Case No. 610, but also by the actual return of the personal property seized; and that the question of whether or not the plaintiff’s bond in question is subsisting is academic since Civil Case No. 610 has been dismissed without costs by the Court of First Instance of Zamboanga. For reference, the appellees incorporated in their brief a certificate of the Clerk of the Court of First Instance of Zamboanga. 2
The issues being moot and academic, the appeal is hereby DISMISSED without pronouncement as to costs.
SO ORDERED.
Makalintal, C.J., Fernando, Barredo and Aquino, JJ., concur.
It appears that on May 18, 1956, Tan Gin San, plaintiff in Civil Case No. 610 of Zamboanga, 1 as principal, and the Luzon Surety Co., Inc., as surety, executed a "Plaintiff’s Bond for Manual Delivery of Personal Property" in the amount of P144,000.00 for the prosecution of the action, the return of the property to the defendant if return be adjudged, the payment to defendant of such sums as may be recovered from the plaintiff, and the costs of the action. On that same date, Tan Gin San, Narciso A. Tan, and Tirso Lorenzo executed an Indemnity Agreement, in favor of the Luzon Surety Co., Inc., binding themselves; jointly and severally, to pay the said surety company the sum of P3,000.00, as premium on the plaintiff’s bond, and to indemnify the said surety company and save it harmless against any and all damages, losses, costs, stamps, taxes, penalties, charges, and expenses of whatever kind and nature which the surety company shall sustain or incur in consequence of its having become the surety upon the said plaintiff’s bond.
On November 16, 1956, upon the filing of a counterbond by defendant Rosalia Tan, in said Civil Case No. 610, the Court of First Instance of Zamboanga issued an Order for the return of the property in question to the said defendant, and on January 3, 1957, the Sheriff turned over the possession of the property to the defendant Rosalia A. Tan.
Tirso Lorenzo died during the pendency of said Civil Case No. 610 and Special Case No. 485 was instituted to settle his estate.
On August 8, 1957, the Luzon Surety Co. Inc. filed a claim with the probate court for payment of the sum of P144,000.00, plus interest thereon and attorney’s fees, as well as the sum of P3,045.00 per annum as premium and stamps for the plaintiff’s bond, commencing from May 18, 1957 until the said bond is cancelled and the surety company relieved from liability.
Tan See Seng, administratrix of the Intestate Estate of the late Tirso Lorenzo, opposed the claim on the ground that the bond in question had already been released because the building referred to in the bond had been returned to the defendant in Civil Case No. 610.
On June 6, 1961, after a hearing, the probate court issued an order dismissing the claim of the surety company. A motion to reconsider this order was filed by the surety company, but the said motion for reconsideration was denied.
Hence, this appeal.
The principal contention of the claimant-appellant surety company is that the plaintiff’s bond co-exists with the pendency of Civil Case No. 610 wherein it is filed and is not cancelled by the filing of a counterbond by the defendant and the return of the property seized, and since Civil Case No. 610 is still pending and the risk for which the bond had been filed still exists, the estate of the late Tirso Lorenzo may be held liable for the contingent claim and unpaid premiums on the bond under the terms of the indemnity agreement.
The appellees upon the other hand maintain that the cancellation of the plaintiff’s bond and the indemnity agreement was effected not only by the express request of the plaintiff in Civil Case No. 610, but also by the actual return of the personal property seized; and that the question of whether or not the plaintiff’s bond in question is subsisting is academic since Civil Case No. 610 has been dismissed without costs by the Court of First Instance of Zamboanga. For reference, the appellees incorporated in their brief a certificate of the Clerk of the Court of First Instance of Zamboanga. 2
The issues being moot and academic, the appeal is hereby DISMISSED without pronouncement as to costs.
SO ORDERED.
Makalintal, C.J., Fernando, Barredo and Aquino, JJ., concur.
Endnotes:
1. An action for Replevin, entitled: Tan Gin San, plaintiff, versus Rosalia A. Tan, as Administratrix of the Intestate Estate of Tan Chan, Deceased, Defendant.
2. See also p. 25, rollo.
