EN BANC
G.R. No. L-27940 June 10, 1971
FRANCISCO MILITANTE, III, plaintiff-appellant,
vs.
ANTERO EDROSOLANO and MANUEL BELLOSILLO, defendants-appellees.
Manuel A. Roa & German M. Lopez for plaintiff-appellant. Cirilo Y. Ganzon for defendant-appellee Antero Edrosolano.
Diosdado Gangalao for defendant-appellee Manuel Bellosillo.
Separate Opinions
BARREDO, J., concurring:
I concur in the judgment overruling the order of dismissal of the lower court impugned in its appeal, but my reasons for so holding are quite different from those discussed by our able colleague, Justice Fernando, in the opinion he has written for the Court, hence this separate opinion. Frankly, I do not see enough cause to express apprehension that by the questioned action of the trial judge there might be a "blot in the legal order" and that "the law itself stands in dispute. "Much less do I share the reproof that His Honor's "response to the assertion of a legal right was one of indifference." Indeed, I am afraid there is very little ground to hold that the lower court's reasoning in upholding appellee's motion to dismiss is altogether without basis. A cursory reading of the appealed order of dismissal would readily reveal that the trial judge merely sustained appellee's basic position in their motion that appellant's action is premature, since the basis of the latter's alleged cause of action is only a levy on attachment, not of execution, and, besides, that it is only after the action to annul the judgment in the allegedly collusive suit referred to in the complaint has been successfully prosecuted to final judgment that said appellant could be entitled to question the validity of the sale on execution in favor of appellee Bellosillo. In other words, His Honor did not consider at all whether or not there are sufficient allegations in the complaint to warrant a conclusion that indeed the judgment in question was a collusive one and, instead, he simply held that appellant's claim of preference in favor of the levy on attachment in his suit against appellee Edrosolano over the sale on execution in favor of appellant Bellosillo had yet no reason for being until after the judgment under which said sale had been made has been set aside by another final judgment and that, moreover, appellant could have preserved, on the other hand his claimed priority had he filed the required counterbond against appellee Bellosillo's third-party claim. Evidently, His Honor's frame of reference was the alleged priority of the attachment over the sale on execution and not the alleged nullity of their judgment from which the sale on execution drew its life. Otherwise stated, the trial judge failed to grasp the thrust of appellant's apparent theory in this complaint; what His Honor saw as appellant's cause of action, was nothing more than an assertion that since he had a levy on attachment in his favor, necessarily, the sale on execution in favor of appellee Bellosillo must be set aside, particularly, because it is the result of a suit only alleged to be but not yet finally adjudged as cojusive. Undoubtedly such a view may not be entirely correct, but my point is that it is far from manifesting indifference to a rightful claim properly alleged. I do not find any attempt of the trial judge to so ignore or disregard any elemental facts alleged to institute appellant's supposed cause of action to warrant the reminder from Adamos and Republic Bank, both cited in the main opinion, that a motion to dismiss assumes hypothetically at least, the facts alleged in the complaint. With as I shall discuss a little later, the cases of Anuran v. Aquino and Garchitorena v. Sotelo likewise referred to in the main opinion have very little, if any, relevant application to the present case.
I say that His Honor's view of appellant's cause of action may not been entirely correct because of my own analysis of the circumstances portrayed in appellant's complaint convinces me that the real fault in the framing of appellant's complaint lies in the apparently secondary significance it has given to the superior legal efficacy of the levy on attachment on the properties herein involved in his favor over the execution sale in favor of appellee Bellosillo. While, as I have already observed, the court a quo used the said levy on attachment as its main frame of reference, it fell short of realizing that in appellant's levy on attachment was made prior to the levy on execution, it impressed upon the properties thus levied on an effective lien that subjects the sale on execution in favor of appellee Bellosillo to the results of the action filled by appellant as Civil Case No. 6838 against appellee Edrosolano. (See concurring and dissenting opinion of Justice Moreland in Kuenzle & Sheriff v. Villanueva, 41 Phil. 611, 622- 670)1 Thus, the more efficacious and speedier cause of action I read in appellant's complaint here in question is that the defendant's in the court below, which perhaps should have included the sheriff, have not accorded due respect to the levy on attachment in his favor, and on the basis of this cause of action, I hold that the relief to which appellant is entitled is for the court to order that the sheriff restore the said levy on attachment and continue the same even without the need of any counterbond against the third-party claim of appellee Bellosillo, unless there is anyway by which the sale on execution in favor of said third-party claimant and appellee Bellosillo may be publicly recorded as being subject to the levy on attachment and the results of the action in favor of appellant.
It is my considered opinion that this approach to appellant's case is a closer approximation to the remedial rules applicable thereto.(awÞhi( Besides, I feel that this view will afford appellant safer and faster relief than the theory of collusion which the main opinion capitalizes. In this way, the roadblock I perceive consisting of what I believe is still an unsettled question of law may perhaps be avoided, since it may not be imperative, to pass upon it here.
In this connection, the trial court ended its consideration of the order of dismissal in question thus:
An action for annulment of a judgment is subsidiary and can be availed of by those principally or secondarily bound. It is essential that the claim of the plaintiff in Civil Case No. 6838 should have existed before the cause of action in Civil Case No. 6216.
thereby drawing the following ruling from the main opinion:
More specifically, the view entertained by the lower court in its order of dismissal that an action for annulment of judgment can be availed of only by those principally or secondarily bound is contrary to what had been so clearly declared by this Court in the leading case of Anuran v. Aquino, (38 Phil. 29 [1918] decided in 1918. It was emphatically announced therein: 'There can be no question as to the right of any person adversely affected by a judgment to maintain an action to enjoin its enforcement and to have it declared a nullity on the ground of fraud and collusion practiced in the very matter of obtaining the judgment when such fraud is extrinsic or collateral to the matters involved in the issues raised at the trial which resulted in such judgments; ...." (Ibid., pp. 32-33.) Such a principle was further fortified by an observation made by this Court through Justice Ozaeta in Garchitorena v. Sotelo (74 Phil. 25, 30 [1942], Ramirez v. Baltazar, L-25059, August 30, 1968, 24 SCRA 918, may likewise be cited.) These are his words: "The collusive conduct of the parties in the foreclosure suit constituted an extrinsic or collateral fraud by reason of which the judgment rendered therein may be annulled in this separate action. (Anuran v. Aquino and Ortiz, 38 Phil. 29.) Aside from the Anuran-Aquino case, innumerable authorities from other jurisdictions may be cited in support of the annulment. But were there not any precedent to guide us reason and justice would compel us to lay down such doctrine for the first time. (Ibid., p. 30).
I prefer to look at his honors above holding the more liberality, if not with a more accurate analysis of its real intended import. As I understand it, all that the trial judge must have meant to say was that much as the breach of the contract of carriage alleged by appellant took place in 1965 whereas the judgment being assailed as collusive was rendered and had become final way back in 1963, appellant cannot allege he was among those intended to be prejudiced thereby. Truth to tell, I would like to reserve my opinion on this point for a more appropriate occasion, specially because it seems to me that the circumstances alleged in the complaint under review, numerous and impressive as they are, do not sufficiently establish, even if assumed to be true, a clear case for the annulment of a judgment by collusion. I feel that, as the said complaint stands, there are not enough allegations to specifically relate the appellant's cause of action in Civil Case No. 6838 to the motivations of Civil Case No. 6216, This should explain why I find little application of Anuran and Garchitorena here. My impression is that in citing these, the main opinion assumes, without the least attempt to show the correctness of such an assumption that the herein complaint alleges all the initial facts which constitute the elements of the cause of action in dispute regarding a collusive suit.
I, therefore, vote to overrule the order of dismissal appealed from and to order the remand of this case to the lower court for the corresponding further proceedings, including possible amendments by appellant to further strengthen his theory of collusion, with the specific instruction that the sheriff who made the levy on attachment in favor of appellant in Civil Case No. 6838 be ordered impleaded as defendant, consistent with the above opinion, with costs against appellees.
Footnotes
1 While somehow the majority opinion discussed the relation between the lien of in attachment and the preference of credits under the Civil Code, (under the Code of Civil Procedure, Act 190, and the old Civil Code), Justice Moreland had this to say of said discussion:
"I agree that the decision should be reversed. I cannot agree, however, to the discussion of the questions taken up and considered by the court in the majority opinion and decided. The whole subject of preference is covered and the field of attachments is fully occupied, when there is, in my opinion, nothing in the case which warrants it. The only question presented is this: Is an attaching creditor entitled to apply the proceeds of the sale of the property attached to the payment of the judgment obtained in the action in which the attachment was levied as against a mere judgment creditor of the same defendant whose judgment was obtained after the attachment was levied but before judgment on the action? To determine this question there was no necessity of discussing the whole law of preferred credits, or of attempting the impossible task of uniting or harmonizing it with the law of attachments; for, it is conceded by the court that, whether the attachment is considered a lien or a preference, it was to be preferred to a mere judgment subsequently obtained which had no relation to or connection with the property attached. There was no need, therefore, to attempt to exhaust the subject of preference; and particularly there was no reason for seriously emasculating, indeed, completely destroying, the essential character of the attachment as known, recognized and established by courts and jurists from the earliest times. This is clear not only from the fact already stated, viz, that the attachment was entitled to priority to matter whether it were considered a lien or a preference, but also from the fact that the court, after it had emasculated attachments in general, and this one in particular, held that it was still superior to the judgment of the defendant. Certainly, if it was superior after emasculation, it was before; and it is queer logic which leads one to destroy the essential and individual character of a right in order to demonstrate that it is superior to some other.
"Moreover, there was not necessity for such a discussion as the opinion contains, with the uncertainty and confusion which will follow in several branches of the law, for another reason: If the court had simply followed the plain language of the Act relating to attachments that would have ended the matter at once. Its provisions are clear and the rights of the attaching creditor are set out so explicitly and plainly that to escape the obvious effects of the Act one must give it a construction and interpretation so strained and unnatural and so in violation of all precedent as to destroy the Act itself — and, as a result, to make a statute instead of apply a statute. A mere reading of the provisions of the law of attachments as it is found in Act No. 190 of the Philippine Commission should end the controversy instantly. Its provisions are as clear as language can make them and are simplicity itself. Moreover, so far as securing to the attaching creditor his rights in the property attached is concerned, they are mandatory." (41 Phil. 622-623.)
Additionally, he analyzed the main opinion thus:
"I want, first of all, to point out what the court holds in this case and the train of argument by which it arrives at its conclusion. As I have said, I find no fault with the bare finding that the attachment must be upheld. With that I agree. That was a resolution of the question, and the sole question, before the court. But the Court decides much more than that; and this, together with the style and character of the argument found in the opinion, is what I object to. Near the end of the opinion the court holds that an attachment lien is 'Subject to all ... statutory preferences by which such property is affected at the time of the levy ....' This was clearly unnecessary to a decision of the question presented. The judgment in this case was subsequent to the levy of the attachment and therefore, the situation which would have arisen if it had been prior to the levy was not presented. But I would not object so seriously to the obiter dictum if it contained a correct statement of the law with which it deals. When, however, it is not only obiter but wrong also, I not only feel constrained to dissent but to register that dissent as well. Nothing is more objectionable than erroneous obiter dicta (Ibid., p. 624.)
The burden of the separate opinion is that the lien of attachment is superior to the codal preference of a judgment as a credit under the Article of the Civil Code then which is now Art. 2244 of the new Civil Code. This view differs from what he considered obiter dictum in the main opinion, since the latter recognized the priority of attachments only over after-acquired judgments. In the case at bar, the issue of preference is between appellant's attachment levy and the judgment alleged to be collusive which was rendered and had become final two years before appellant's levy. This case could, therefore, be the opportune one for this Court to chose definitely for doctrinal purposes between the main opinion and that of Justice Moreland, but inasmuch as We are ordering its remand to the lower court for appropriate proceedings, it would be more fitting to settle the issue in the event it comes back to Us after its trial on the merits.
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