EN BANC
[G.R. No. 42142. August 9, 1934. ]
THE BACHRACH MOTOR CO., INC., Petitioner, v. MARIANO A. ALBERT, judge of Branch AB of the Court of First Instance of Manila, ISABEL ABLAZA, and PEDRO VALDEZ LIONGSON, Respondents.
Ohnick & Opisso for Petitioner.
Pedro Valdez Liongson for Respondents.
SYLLABUS
1. REPLEVIN; MANUAL DELIVERY OF PERSONAL PROPERTY; COMPLIANCE WITH STATUTORY REQUIREMENTS BY DEFENDANT FOR RETURN OF PROPERTY; CODE OF CIVIL PROCEDURE, SECTION 267, CONSTRUED. — The last sentence of section 267 of the Code of Civil Procedure, reading: "If a return of the property be not so required within five days after the taking and service of notice to the defendant, it must be delivered to the plaintiff, except as provided in section two hundred and seventy", is taxative and mandatory in nature. For one to avail himself of the privilege of retaining the possession of property, compliance with the conditions precedent imposed is necessary, and failure to comply therewith entitles plaintiff to possession. The redelivery bond must be filed within the time prescribed.
2. ID.; ID.; ID.; ID. — A trial judge acts in excess of jurisdiction when he attempts to approve a bond for the redelivery of chattels to the defendant presented after the statutory period has expired.
2. ID.; ID.; ID.; ID. — A trial judge acts in excess of jurisdiction when he attempts to approve a bond for the redelivery of chattels to the defendant presented after the statutory period has expired.
D E C I S I O N
MALCOLM, J.:
The facts which have induced the presentation of this petition for a writ of certiorari addressed to the Court of First Instance of Manila not being in dispute, the legal question arising out of the admitted facts is only to be decided, and concerns the interpretation which should be given to the last sentence of section 267 found in the portion of the Code of Civil Procedure relating to manual delivery of personal property, and reading: "If a return of the property be no so required within five days after the taking and service of notice to the defendant, it must be delivered to the plaintiff, except as provided in section two hundred and seventy."cralaw virtua1aw library
Isabel Ablaza and Pedro Valdez Liongson executed promissory notes, and chattel mortgages on autocalesas, in favor of the Bachrach Motor Company, Inc. An action for the foreclosure of the chattel mortgages was begun. In aid of the foreclosure proceeding, the plaintiff in that case filed an action for the delivery of personal property and presented a bond in order to obtain possession of the autocalesas. The sheriff of Manila, after taking over the control of the chattels, gave notice to the defendants to file a bond for the return of the property if they desired to retain it. Within the five- day period the defendants failed to file any bond. Upon such failure the sheriff of Manila delivered the chattels to the plaintiff. Five days later the defendants filed an urgent motion in which they asked the court to approve a bond in the sum of P6,000 for the return to them of the replevied chattels. After hearing the trial judge granted the petition on the theory that he had general jurisdiction, and that there was nothing in the law which prohibited him to take action.
Section 267 of our code of Civil Procedure was derived from section 514 of the Code of Civil Procedure of California. In turn, the California codal provision was based on the Practice Act of New York, except that instead of using the word "shall" before the words "be delivered", the word "must" was used. The emphatic, taxative, mandatory nature of the language is accordingly evident. The New York Court has held that, where seller, for default in payments on a machine sold on an installment contract secured by a chattel mortgage, replevied the machine, the buyer, not having given the statutory bond and reclaimed the chattel, nor having demanded the return thereof, has, as a matter of law, conceded seller’s right to possession. (O. B. Brush Corp. v. Weiner Bookbinding Co. [1922], 198 N. Y. S., 566.) The California Court has held that the right of a defendant in a claim and delivery action to require the return to him of property taken from him by the sheriff is conditioned upon his giving to the sheriff an undertaking as provided by section 514, Code of Civil Procedure. (Bailey v. Baker [1915], 153 Pac., 242.) A Pennsylvania Court has held that the bond must be filed within the time prescribed. (Lunneman v. Lunneman, 11 Pa. Dist., 759.)
Aside from the intendment to be deduced from the language used by the Legislature and aside from the authorities, it is readily apparent that for one to avail himself of the privilege of retaining the possession of property, compliance with the conditions precedent imposed is necessary, and failure to comply therewith entitles plaintiff to possession. The initial steps in obtaining redelivery must be taken within the time limited by the statute. In this connection it should be recalled that the autocalesas had passed out of the possession of the defendants and out of the control of the court into the possession of the plaintiff because of the failure of the defendants to file the necessary bond in time.
The parties have discussed other phases of the case, particularly the effect of Act No. 4122 which introduced by way of amendment article 1454-A into the Civil Code. We think, however, that any pronouncements on these questions would be beyond the issue. The controlling factor is that the trial judge acted in excess of jurisdiction in attempting to approve a bond for the redelivery of the chattels presented after the statutory period had expired.
Petition granted, the costs to be paid by the respondents Isabel Ablaza and Pedro Valdez Liongson.
Villa-Real, Imperial, Butte and Goddard, JJ., concur.
Isabel Ablaza and Pedro Valdez Liongson executed promissory notes, and chattel mortgages on autocalesas, in favor of the Bachrach Motor Company, Inc. An action for the foreclosure of the chattel mortgages was begun. In aid of the foreclosure proceeding, the plaintiff in that case filed an action for the delivery of personal property and presented a bond in order to obtain possession of the autocalesas. The sheriff of Manila, after taking over the control of the chattels, gave notice to the defendants to file a bond for the return of the property if they desired to retain it. Within the five- day period the defendants failed to file any bond. Upon such failure the sheriff of Manila delivered the chattels to the plaintiff. Five days later the defendants filed an urgent motion in which they asked the court to approve a bond in the sum of P6,000 for the return to them of the replevied chattels. After hearing the trial judge granted the petition on the theory that he had general jurisdiction, and that there was nothing in the law which prohibited him to take action.
Section 267 of our code of Civil Procedure was derived from section 514 of the Code of Civil Procedure of California. In turn, the California codal provision was based on the Practice Act of New York, except that instead of using the word "shall" before the words "be delivered", the word "must" was used. The emphatic, taxative, mandatory nature of the language is accordingly evident. The New York Court has held that, where seller, for default in payments on a machine sold on an installment contract secured by a chattel mortgage, replevied the machine, the buyer, not having given the statutory bond and reclaimed the chattel, nor having demanded the return thereof, has, as a matter of law, conceded seller’s right to possession. (O. B. Brush Corp. v. Weiner Bookbinding Co. [1922], 198 N. Y. S., 566.) The California Court has held that the right of a defendant in a claim and delivery action to require the return to him of property taken from him by the sheriff is conditioned upon his giving to the sheriff an undertaking as provided by section 514, Code of Civil Procedure. (Bailey v. Baker [1915], 153 Pac., 242.) A Pennsylvania Court has held that the bond must be filed within the time prescribed. (Lunneman v. Lunneman, 11 Pa. Dist., 759.)
Aside from the intendment to be deduced from the language used by the Legislature and aside from the authorities, it is readily apparent that for one to avail himself of the privilege of retaining the possession of property, compliance with the conditions precedent imposed is necessary, and failure to comply therewith entitles plaintiff to possession. The initial steps in obtaining redelivery must be taken within the time limited by the statute. In this connection it should be recalled that the autocalesas had passed out of the possession of the defendants and out of the control of the court into the possession of the plaintiff because of the failure of the defendants to file the necessary bond in time.
The parties have discussed other phases of the case, particularly the effect of Act No. 4122 which introduced by way of amendment article 1454-A into the Civil Code. We think, however, that any pronouncements on these questions would be beyond the issue. The controlling factor is that the trial judge acted in excess of jurisdiction in attempting to approve a bond for the redelivery of the chattels presented after the statutory period had expired.
Petition granted, the costs to be paid by the respondents Isabel Ablaza and Pedro Valdez Liongson.
Villa-Real, Imperial, Butte and Goddard, JJ., concur.
