Zaragoza v.

Delfino
GR L-29723, Jul. 14, 1988
J. Narvasa

Case Summary: Zaragoza filed a suit for replevin against Fidelino for failure to pay for the car
sold to him. A counter-bond was posted by Mabini Insurance Company in accordance to their
agreement. As such, Zaragoza motioned to include the surety company as defendant. Since
Fidelino nor Mabini interposed no objection, the CFI granted the motion. Upon promulgation
of the judgment adjudging both Fidelino and Mabini Insurance Co liable, the latter appealed,
alleging that they were improperly impleaded as co-defendant and was not given proper
hearing as a surety. SC rejected their argument and applied Sec. 17 Rule 47 RoC and held that
Mabini was properly impleaded as Fidelino’s surety. Moreover, the mere posting of the
counter-bond in behalf of Fidelino served as its assent to the lower court’s jurisdiction over
the action.

Facts:
- A suit for replevin was brought by Zargoza in the CFI of QC against Angela Fidelino,
alleging that the car had been sold to Fidelino but the latter had failed to pay the
price in the manner stipulated in their agreement.
- Thus, the car was taken away from Fidelino but was promptly returned to him when a
surety bond was posted in her behalf by Mabini Insurance and Fidelity Company.

- Zaragosa appealed and moved to include the surety, Mabini Insurance & Fidelity Co.,
Inc., as a party solidarily liable with Fidelino for the payment of sums awarded in the
judgment.
- Fidelino or the surety company made no opposition to this motion.
- CFI: Granted this motion and adjudged Mabini Insurance Co. liable as Fidelino’s surety.

- Mabini Insurance contended that the CFI never acquired jurisdiction over it since no
summons was ever served on it.
- Claimed that its filing of a counter-bond was not equivalent to voluntary
submission to the Court’s jurisdiction
- Also alleged that Zaragoza failed to make a proper application with notice
before finality of the decision under Sec. 20 Rule 57 RoC.
- In short, Mabini contends that the first judgment which did not include
Mabini has already become final before Zaragosa motioned to include
Mabini as defendant.

- On the other hand, Zaragoza defended that Sec. 20, Rule 57 RoC should be read in
conjunction with Sec. 10 Rule 60 RoC.

RATIO DECIDENDI
 1. HOW SHOULD Sec. 10 Rule 60 cf. Sec. 20 Rule 57 BE READ?

- SEC. 10 RULE 60 IN BRIEF: provides that the amount to be awarded to either party
upon any bond filed shall be claimed xxx in the same procedure as Sec. 20 Rule 57
RoC.

- Sec. 20 Rule 57 in relation to Sec 10 Rule 60: provides that damages may be
awarded only upon application and after proper hearing, and shall be included in the
final judgment.

- COURT: To hold a surety on a counter-bond liable, the claimant should:

1. File an application therefor with the Court which acquired jurisdiction of the
action;
2. Present such before the judgment becomes executory or before the appeal is
perfected;
3. State the facts showing the applicant’s right to damages and amount thereof;
4. Give due notice of the application to the attaching creditor and his surety/ies;
5. Hold a proper hearing at which the attaching creditor and the sureties may be
heard on the application.

2. DOES SUCH PROVISION APPLY TO THIS CASE? -- NO.

- This case is concerned with the enforcement of a surety’s liability on a counter-bond

given for the release of property seized under a writ of preliminary attachment. Such
situation is governed by Sec. 17, Rule 47 RoC:
- SEC 17 RULE 47 ROC IN BRIEF: If the execution be returned unsatisfied, the
surety shall be charged for the counter-bond and shall be bound to pay to the
judgment creditor the amount due under the judgment upon demand by the
latter after notice and summary hearing in the same action.

- Here, records show that the surety company bound itself to be solidarily liable with
Fidelino in the sum of 48,600 pesos which is double the value of the property OR for
the payment of such sum to him as may be recovered against defendant (Fidelino) and
the costs of action.
- Thus, surety’s liability attached upon the promulgation of the verdict against
Fidelino.
- All that was necessary to enforce such judgment was to apply with the Court
with due notice to the surety and a proper hearing along with the opportunity
to show cause why it should not be adjudged to be responsible thereto.A
separate action is not necessary.

- In this case, Zaragoza’s Motion to Amend the Decision was enough to bring the action
to the surety.
 - In fact, the motion also contained at its foot a notice thereto and both Fidelino
and the surety company made no opposition to the motion.
- Thus, the motion was deemed submitted for resolution. The surety’s omission
to appear at the hearing despite notice constituted a waiver of the right to
be heard on the matter.

- RE: No summons made to the surety: Untenable. The fact that it posted the
counter-bond is manifest of its assent to be bound by the jurisdiction of the Court and
by Fidelino’s liability.
- By posting the bond, it implicitly sought the affirmative relief of the release of
the car in favor of Fidelino.

RULING: Affirmed lower court in toto.