FILOMENA DOMAGAS vs. VIVIAN LAYNO JENSEN G.R. No. 158407 January 17, 2005 (CASE DIGEST)

FACTS:

Petitioner FilomenaDomagas filed a complaint for forcible entry against respondent Vivian Jensen before the MTC alleging that the respondent by means of force, strategy and stealth, gained entry into the petitioner’s property by excavating a portion thereof and thereafter constructing a fence thereon depriving the petitioner of a 68-square meter portion of her property along the boundary line.

The summons and the complaint were not served on the respondent because the latter was apparently out of the country. The Sheriff left the summons and complaint with Oscar Layno (respondent's brother), who received the same.

The court rendered judgment against the respondent.The respondent failed to appeal the decision. Consequently, a writ of execution was issued.

The respondent then filed a complaint against the petitioner before the RTC for the annulment of the decision of the MTC on the ground that due to the Sheriff’s failure to serve the complaint and summons on her because she was in Oslo, Norway, the MTC never acquired jurisdiction over her person. Respondent claimed she was a resident of Oslo, Norway and although she owned the house where Oscar Layno received the summons and the complaint, she had then leased it to Eduardo Gonzales. She avers further that Oscar Layno was never authorized to receive the summons and the complaint for and in her behalf.

In her answer to the complaint, the petitioner alleged that the respondent was a resident of Barangay Buenlag, Calasiao, Pangasinan and was the owner of the subject premises where Oscar Layno was when the Sheriff served the summons and complaint; that the service of the complaint and summons by substituted service on the respondent was proper since her brother Oscar Layno, a resident and registered voter of Barangay. Buenlag, Calasiao, Pangasinan, received the complaint and summons for and in her behalf.

After due proceedings, the RTC rendered a decision in favor of the respondent. The trial court declared that there was no valid service of the complaint and summons on the respondent considering that she left the Philippines for Oslo, Norway, and her brother Oscar Layno was never authorized to receive the said complaint and summons for and in her behalf.

The petitioner appealed the decision to the CA which affirmed the appealed decision with modifications. The CA ruled that the complaint was one for ejectment, which is an action quasi in rem. The appellate court ruled that since the defendant therein was temporarily out of the country, the summons and the complaint should have been served via extraterritorial service under Section 15 in relation to Section 16, Rule 14 of the Rules of Court, which likewise requires prior leave of court. Considering that there was no prior leave of court and none of the modes of service prescribed by the Rules of Court was followed by the petitioner, the CA concluded that there was really no valid service of summons and complaint upon the respondent, the defendant in Civil Case No. 879.

Hence, the present petition for review on certiorari.

ISSUES:

Whether or not there was a valid service of the summons and complaint on the respondent. Whether or not the action of the petitioner in the MTC against the respondent herein is an action in personam or quasi in rem.

RULING:

The ruling of the CA that the petitioner’s complaint for forcible entry of the petitioner against the respondent is an action quasi in rem, is erroneous. The action of the petitioner for forcible entry is a real action and one in personam because the plaintiff seeks to enforce a personal obligation or liability on the defendant under Article 539 of the New Civil Code, for the latter to vacate the property subject of the action, restore physical possession thereof to the plaintiff, and pay actual damages by way of reasonable compensation for his use or occupation of the property.

The settled rule is that the aim and object of an action determine its character. Whether a proceeding is in rem, or in personam, or quasi in rem for that matter, is determined by its nature and purpose, and by these only. A proceeding in personam is a proceeding to enforce personal rights and obligations brought against the person and is based on the jurisdiction of the person, although it may involve his right to, or the exercise of ownership of, specific property, or seek to compel him to control or dispose of it in accordance with the mandate of the court. The purpose of a proceeding in personam is to impose, through the judgment of a court, some responsibility or liability directly upon the person of the defendant. Of this character are suits to compel a defendant to specifically perform some act or actions to fasten a pecuniary liability on him. An action in personam is said to be one which has for its object a judgment against the person, as distinguished from a judgment against the propriety to determine its state. It has been held that an action in personam is a proceeding to enforce personal rights or obligations; such action is brought against the person. As far as suits for injunctive relief are concerned, it is well-settled that it is an injunctive act in personam. In Combs v. Combs, the appellate court held that proceedings to enforce personal rights and obligations and in which personal judgments are rendered adjusting the rights and obligations between the affected parties is in personam. Actions for recovery of real property are in personam.

On the other hand, a proceeding quasi in rem is one brought against persons seeking to subject the property of such persons to the discharge of the claims assailed. In an action quasi in rem, an individual is named as defendant and the purpose of the proceeding is to subject his interests therein to the obligation or loan burdening the property. Actions quasi in rem deal with the status, ownership or liability of a particular property but which are intended to operate on these questions only as between the particular parties to the proceedings and not to ascertain or cut off the rights or interests of all possible claimants. The judgments therein are binding only upon the parties who joined in the action.

On the issue of whether the respondent was validly served with the summons and complaint by the Sheriff:

In Asiavest Limited v. Court of Appeals , the Court had the occasion to state:

In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. Jurisdiction over the person of a resident defendant who does not voluntarily appear in court can be acquired by personal service of summons as provided under Section 7, Rule 14 of the Rules of Court. If he cannot be personally served with summons within a reasonable time, substituted service may be made in accordance with Section 8 of said Rule. If he is temporarily out of the country, any of the following modes of service may be resorted to: (a) substituted service set forth in Section 8; (2) personal service outside the country, with leave of court; (3) service by publication, also with leave of court; or (4) any other manner the court may deem sufficient.

Thus, any judgment of the court which has no jurisdiction over the person of the defendant is null and void.

In the present case, the records show that the respondent, before and after his marriage to Jarl Jensen on August 23, 1987, remained a resident of Barangay Buenlag, Calasiao, Pangasinan. Considering that the respondent was in Oslo, Norway, having left the Philippines on February 17, 1999, the summons and complaint in Civil Case No. 879 may only be validly served on her through substituted service under Section 7, Rule 14 of the Rules of Court, which reads:

SEC. 7. Substituted service. — If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant’s office or regular place of business with some competent person in charge thereof.

Strict compliance with the mode of service is required in order that the court may acquire jurisdiction over the person of the defendant. The statutory requirement of substituted service must be followed faithfully and strictly and any substituted service other than that authorized by the statute is rendered ineffective. As the Court held in Hamilton v. Levy :

… The pertinent facts and circumstances attendant to the service of summons must be stated in the proof of service or Officer’s Return; otherwise, any substituted service made in lieu of personal service cannot be upheld. This is necessary because substituted service is in derogation of the usual method of service. It is a method extraordinary in character and hence may be used only as prescribed and in the circumstances authorized by statute. Here, no such explanation was made. Failure to faithfully, strictly, and fully comply with the requirements of substituted service renders said service ineffective.

In Keister v. Narcereo, the Court held that the term "dwelling house" or "residence" are generally held to refer to the time of service; hence, it is not sufficient to leave the summons at the former’s dwelling house, residence or place of abode, as the case may be. Dwelling house or residence refers to the place where the person named in the summons is living at the time when the service is made, even though he may be temporarily out of the country at the time. It is, thus, the service of the summons intended for the defendant that must be left with the person of suitable age and discretion residing in the house of the defendant. Compliance with the rules regarding the service of summons is as much important as the issue of due process as of jurisdiction.

As gleaned from the service return, there is no showing that the house where the Sheriff found Oscar Layno was the latter’s residence or that of the respondent herein. Neither is there any showing that the Sheriff tried to ascertain where the residence of the respondent was on the said date. It turned out that the occupant of the house was a lessor, Eduardo Gonzales, and that Oscar Layno was in the premises only to collect the rentals from him. The service of the summons on a person at a place where he was a visitor is not considered to have been left at the residence or place or abode, where he has another place at which he ordinarily stays and to which he intends to return.

The Voter’s Registration Record of Oscar Layno wherein he declared that he was a resident of No. 572 Barangay Buenlag, Calasiao, Pangasinan, as well as the Joint Affidavit of Vicenta Peralta and OrlandoMacasalda cannot prevail over the Contract of Lease the respondent had executed in favor of Eduardo Gonzales showing that the latter had resided and occupied the house of the respondent as lessee since November 24, 1997, and the affidavit of Eduardo Gonzales that Oscar Layno was not residing in the said house.

In sum, then, the respondent was not validly served with summons and the complaint in Civil Case No. 879 on April 5, 1999, by substituted service. Hence, the MTC failed to acquire jurisdiction over the person of the respondent; as such, the decision of the MTC in Civil Case No. 879 is null and void.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. No costs.

LAURENCE M. SISON vs. EUSEBIA CARIAGA (G.R. No. 177847 - July 31, 2009) CASE DIGEST

FACTS:

Teofilo Sison and his son Nelson purchased from the Land Bank of the Philippines a parcel of land situated in Barangay Cabuaan, Bautista, Pangasinan.

On December 14, 1999, Teofilo and Nelson donated, via a Deed of Donation, the 11 lots into which Lot 23-B was subdivided in favor of Laurence Sison (petitioner) and his therein named siblings.

After a relocation/verification survey of the subject lot, it was found out that the house of Eusebia Cariaga (respondent) was erected thereon, hence, petitioner, as co-owner, repeatedly demanded the vacation thereof by respondent, the last of which was by a September 15, 2003 letter informing her that her occupation of the subject lot was illegal and merely tolerated.  The demands were, however, unheeded.

Petitioner as co-owner of the subject lot thus filed on January 19, 2004 a complaint for unlawful detainer against respondent before the Municipal Circuit Trial Court (MCTC), Alcala, Pangasinan.By Decision of September 7, 2004, the MCTC rendered judgment in favor of petitioner ruling that given respondent’s virtual admission of occupancy of the subject lot and of her failure to substantiate her claim of ownership, the nature of her possession is possession without title, while petitioner has the title but without possession.

On appeal by respondent, the RTC reversed the MCTC decision.The RTC held that petitioner failed to substantiate his allegation that respondent’s occupation of the subject lot was merely tolerated, hence, the complaint did not satisfy the jurisdictional requirement to constitute a valid cause of action for unlawful detainer.Petitioner elevated the case to the Court of Appeals.

The appellate court affirmed the RTC decision, holding that the tolerance which petitioner claimed was not present from the inception of respondent’s possession of the subject lot, for prior to petitioner and his co-owner’s acquisition thereof via donation in 1999, respondent, who constructed her house in “1972,” was already in peaceful and prior possession thereof.

Petitioner’s motion for reconsideration having been denied by the appellate court by Resolution of May 8, 2007, he filed the present petition for review on certiorari.

ISSUES:

Whether or not unlawful detainer was the proper remedy in the case at bar.

RULING:

The nature of an action and which court has jurisdiction over it are determined by the allegations of the complaint and the character of the relief sought. They cannot be made to depend upon the defenses set up in the Answer or pleadings filed by the defendant, and neither can they be made to depend on the exclusive characterization of the case by one of the parties.

X X X

Clearly, petitioner’s complaint established the basic elements of a complaint for unlawful detainer to vest jurisdiction over it in the MCTC.

That respondent has, in her Answer, claimed that her father owned the lot on which her house stands did not render the complaint for unlawful detainer dismissible, for the issue of ownership may, in an ejectment case, be resolved only to determine the issue of possession.

On the merits, by respondent and her siblings’ filing before the DARAB of a petition for annulment of the sale of Lot 23-B by the Land Bank to petitioner’s predecessors-in-interest Teofilo and Nelson Sison and for them (respondent and her siblings) to purchase said lot, respondent effectively admitted the ownership of petitioner and his co-owners of the subject lot which forms part of Lot 23-B, and that her house indeed stands on the subject lot.   On that score, the Court finds for petitioner.

Decision of Court of Appeals is reversed and set aside.

ANA DE GUIA SAN PEDRO and ALEJO DOPEÑO vs. HON. FATIMA G. ASDALA, et al G.R. No. 164560

FACTS:

Sometime in July 2001, private respondents, heirs of spouses Apolonio and Valeriana Dionisio, filed with the Metropolitan Trial Court (MeTC) of Quezon City, Branch 42, a Complaint against herein petitioners and Wood Crest Residents Association, Inc., for Accion Reivindicatoria, Quieting of Title and Damages, with Prayer for Preliminary Mandatory Injunction.  

Private respondents alleged that subject property located in Batasan Hills, Quezon City, with an assessed value of P32,100.00, was titled in the name of spouses Apolonio and Valeriana Dionisio; but petitioners, with  malice and evident bad faith, claimed that they were the owners of a parcel of land that encompasses and covers subject property.  Private respondents had allegedly been prevented from entering, possessing and using subject property.  It was further alleged in the Complaint that petitioners' Transfer Certificate of Title over their alleged property was spurious.  Private respondents then prayed that they be declared the sole and absolute owners of the subject property; that petitioners be ordered to surrender possession of subject property to them; that petitioners and Wood Crest and/or its members be ordered to pay actual and moral damages, and attorney's fees.

Petitioners, for their part, filed a Motion to Dismiss said complaint on the ground that the MeTC had no jurisdiction over the subject matter of the action, as the subject of litigation was incapable of pecuniary estimation.

The  MeTC  then  issued  an  Order dated July 4, 2002  denying  the  motion to dismiss, ruling that, under Batas Pambansa (B.P.) Blg. 129, as amended, the MeTC had exclusive original jurisdiction over actions involving    title    to   or   possession   of   real  property  of   small  value. Petitioners' Motion for Reconsideration of said Order dated July 4, 2002 was denied.

Petitioners assailed the aforementioned Order by filing a petition for certiorari with the Regional Trial Court (RTC) of Quezon City, Branch 87.  However, in its Decision dated March 10, 2003, the RTC dismissed the petition, finding no grave abuse of discretion on the part of the MeTC Presiding Judge.  The RTC sustained the MeTC ruling, stating that, in accordance with Section 33(3) of Republic Act (R.A.) No. 7691, amending B.P. Blg. 129, the  MeTC had jurisdiction over the complaint for Accion Reivindicatoria, as it involves recovery of ownership and possession of  real property located in Quezon City, with an assessed value not exceeding P50,000.00.   A Motion for Reconsideration of the Decision was filed by petitioners, but was denied in an Order dated July 3, 2003.

Petitioners then filed with the Court of Appeals another petition for certiorari, insisting that both the MeTC and RTC acted with grave abuse of discretion amounting to lack or excess of jurisdiction by not ordering the dismissal of the complaint for Accion Reivindicatoria, for lack of jurisdiction over the same.   In the assailed CA Resolution dated September 15, 2003, the CA dismissed the petition outright, holding that certiorari was not available to petitioners as they should have availed themselves of the remedy of appeal.  Petitioners' motion for reconsideration of the resolution of dismissal was denied per Resolution dated June 1, 2004.

Thus, petitioners filed the instant petition for certiorari praying that the Resolutions of the Court of Appeals (CA) dated September 15, 2003 and June 1, 2004, respectively, in CA-G.R. SP No. 78978, be reversed and set aside.

ISSUES:

Whether or not: 

THE HONORABLE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN (SIC) EXCESS OF JURISDICTION IN DENYING THE PETITION FOR CERTIORARI AND FOR FAILURE TO RESOLVE THE ISSUE RAISED IN THE CERTIORARI REGARDING THE JURISDICTION OF THE METROPOLITAN TRIAL COURT TO TAKE COGNIZANCE OF A CASE OF ACCION REINVINDICATORIA.

THE HONORABLE PUBLIC RESPONDENT FATIMA GONZALES-ASDALA, AS PRESIDING JUDGE OF RTC BRANCH 87, QUEZON CITY, ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF (SIC) JURISDICTION IN DISMISSING THE PETITION FOR CERTIORARI AND IN RESOLVING THAT A CASE OF ACCION REINVINDICATORIA IS WITHIN THE JURISDICTION OF THE METROPOLITAN TRIAL COURT.

THE HONORABLE PUBLIC RESPONDENT MANUEL TARO AS PRESIDING JUDGE MeTC, BRANCH 42, QUEZON CITY, ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN (SIC) EXCESS OF JURISDICTION IN SO TAKING COGNIZANCE OF THE COMPLAINT FOR ACCION REINVINDICATORIA IN CIVIL CASE NO. 27434 ENTITLED, “HEIRS OF SPS. APOLONIO V. DIONISIO AND VALERIANA DIONISIO, ETC. VS. ANA DE GUIA SAN PEDRO, ET. AL.”

RULING:

The present Petition for Certiorari is doomed and should not have been entertained from the very beginning.

The settled rule is that appeals from judgments or final orders or resolutions of the CA should be by a verified petition for review on certiorari, as provided for under Rule 45 of the Revised Rules of  Civil Procedure.  Thus, in Pasiona, Jr. v. Court of Appeals, the Court expounded as follows:  

The aggrieved party is proscribed from assailing a decision or final order of the CA via Rule 65, because such recourse is proper only if the party has no plain, speedy and adequate remedy in the course of law. In this case, petitioner had an adequate remedy, namely, a petition for review on certiorari under Rule 45 of the Rules of Court.  A petition for review on certiorari, not a special civil action for certiorari was, therefore, the correct remedy.

x x x x

                       

Settled is the rule that where appeal is available to the aggrieved party, the special civil action for certiorari will not be entertained – remedies of appeal and certiorari are mutually exclusive, not alternative or successive. Hence, certiorari is not and cannot be a substitute for a lost appeal, especially if one's own negligence or error in one's choice of remedy occasioned such loss or lapse. One of the requisites of certiorari is that there be no available appeal or any plain, speedy and adequate remedy. Where an appeal was available, as in this case, certiorari will not prosper, even if the ground therefor is grave abuse of discretion.  Petitioner's resort to this Court by Petition for Certiorari was a fatal procedural error, and the instant petition must, therefore, fail.

For the very same reason given above, the CA, therefore, acted properly when it dismissed the petition for certiorari outright, on the ground that petitioners should have resorted to the remedy of appeal instead of certiorari.  Verily, the present Petition for Certiorari should not have been given due course at all.        

Moreover, since the period for petitioners to file a petition for review on certiorari had lapsed by the time the instant petition was filed, the assailed CA Resolutions have attained finality.

Nevertheless, just to put the matter to rest, the Court reiterates the ruling in Heirs of Valeriano S. Concha, Sr. v. Spouses Lumocso,[12]  to wit:

In a number of cases, we have held that actions for reconveyance of or for cancellation of title to or to quiet title over real property are actions that fall under the classification of cases that involve “title to, or possession of, real property, or any interest therein.”

x x x x

x x x Thus, under the old law, there was no substantial effect on jurisdiction whether a case is one, the subject matter of which was incapable of pecuniary estimation, under Section 19(1) of B.P. 129, or one involving title to property under Section 19(2).  The distinction between the two classes became crucial with the amendment introduced by R.A. No. 7691 in 1994, which expanded the exclusive original jurisdiction of the first level courts to include "all civil actions which involve title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs." Thus, under the present law, original jurisdiction over cases the subject matter of which involves "title to, possession of, real property or any interest therein" under Section 19(2) of B.P. 129 is divided between the first and second level courts, with the assessed value of the real property involved as the benchmark. This amendment was introduced to "unclog the overloaded dockets of the RTCs which would result in the speedier administration of justice."

         

Clearly, the RTC and the CA ruled correctly that the MeTC had jurisdiction over private respondents' complaint for Accion Reivindicatoria.

IN VIEW OF THE FOREGOING, the petition is DISMISSED for utter lack of merit.  The Resolutions of the Court of Appeals in CA-G.R. SP No. 78978, dated September 15, 2003 and June 1, 2004, are AFFIRMED. 

         

SO ORDERED.

SERAFIN TIJAM, ET AL. vs.MAGDALENO SIBONGHANOY alias GAVINO SIBONGHANOY and LUCIA BAGUIO (CASE DIGEST) G.R. No. L-21450 - - April 15, 1968

FACTS:

The action at bar, which is a suit for collection of a sum of money in the sum of exactly P 1,908.00, exclusive of interest filed by Serafin Tijam and Felicitas Tagalog against Spouses Magdaleno Sibonghanoy and Lucia Baguio, was originally instituted in the Court of First Instance of Cebu on July 19, 1948. A month prior to the filing of the complaint, the Judiciary Act of 1948 (R.A. 296) took effect depriving the Court of First Instance of original jurisdiction over cases in which the demand, exclusive of interest, is not more than P 2,000.00 (Secs. 44[c] and 86[b], R.A. 296.)

The case has already been pending now for almost 15 years, and throughout the entire proceeding the appellant never raised the question of jurisdiction until the receipt of the Court of Appeals' adverse decision.

Considering that the Supreme Court has the exclusive appellate jurisdiction over all cases in which jurisdiction of any inferior court is in issue, the Court of Appeals certified the case to the Supreme Court along with the records of the case.

ISSUE:

Whether or not the appellant's motion to dismiss on the ground of lack of jurisdiction of the Court of First Instance during the pendency of the appeal will prosper.


RULING:

A party may be estopped or barred from raising a question in different ways and for different reasons. Thus we speak of estoppel in pais, or estoppel by deed or by record, and of estoppel by laches.

Laches, in a general sense is failure or neglect, for an unreasonable and unexplained length of time, to do that which, by exercising due diligence, could or should have been done earlier; it is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it.

The doctrine of laches or of "stale demands" is based upon grounds of public policy which requires, for the peace of society, the discouragement of stale claims and, unlike the statute of limitations, is not a mere question of time but is principally a question of the inequity or unfairness of permitting a right or claim to be enforced or asserted.

It has been held that a party can not invoke the jurisdiction of a court to sure affirmative relief against his opponent and, after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction (Dean vs. Dean, 136 Or. 694, 86 A.L.R. 79). In the case just cited, by way of explaining the rule, it was further said that the question whether the court had jurisdiction either of the subject-matter of the action or of the parties was not important in such cases because the party is barred from such conduct not because the judgment or order of the court is valid and conclusive as an adjudication, but for the reason that such a practice can not be tolerated — obviously for reasons of public policy.

Furthermore, it has also been held that after voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court (Pease vs. Rathbun-Jones etc., 243 U.S. 273, 61 L. Ed. 715, 37 S. Ct. 283; St. Louis etc. vs. McBride, 141 U.S. 127, 35 L. Ed. 659). And in Littleton vs. Burgess, 16 Wyo. 58, the Court said that it is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief, to afterwards deny that same jurisdiction to escape a penalty.

Upon this same principle is what We said in the three cases mentioned in the resolution of the Court of Appeals of May 20, 1963 (supra) — to the effect that we frown upon the "undesirable practice" of a party submitting his case for decision and then accepting the judgment, only if favorable, and attacking it for lack of jurisdiction, when adverse — as well as in Pindañgan etc. vs. Dans, et al., G.R. L-14591, September 26, 1962; Montelibano, et al., vs. Bacolod-Murcia Milling Co., Inc., G.R. L-15092; Young Men Labor Union etc. vs. The Court of Industrial Relation et al., G.R. L-20307, Feb. 26, 1965, and Mejia vs. Lucas, 100 Phil. p. 277.

The facts of this case show that from the time the Surety became a quasi-party on July 31, 1948, it could have raised the question of the lack of jurisdiction of the Court of First Instance of Cebu to take cognizance of the present action by reason of the sum of money involved which, according to the law then in force, was within the original exclusive jurisdiction of inferior courts. It failed to do so. Instead, at several stages of the proceedings in the court a quo as well as in the Court of Appeals, it invoked the jurisdiction of said courts to obtain affirmative relief and submitted its case for a final adjudication on the merits. It was only after an adverse decision was rendered by the Court of Appeals that it finally woke up to raise the question of jurisdiction. Were we to sanction such conduct on its part, We would in effect be declaring as useless all the proceedings had in the present case since it was commenced on July 19, 1948 and compel the judgment creditors to go up their Calvary once more. The inequity and unfairness of this is not only patent but revolting.

Coming now to the merits of the appeal: after going over the entire record, We have become persuaded that We can do nothing better than to quote in toto, with approval, the decision rendered by the Court of Appeals x x x granting plaintiffs' motion for execution against the surety x x x

UPON ALL THE FOREGOING, the orders appealed from are hereby affirmed, with costs against the appellant Manila Surety and Fidelity Company, Inc.