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[PERFECTO M. ALEJO v. PABLO S. SISON](https://www.lawyerly.ph/juris/view/c2740?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 48489, Jan 30, 1943 ]

PERFECTO M. ALEJO v. PABLO S. SISON +

DECISION

74 Phil. 94

[ G.R. No. 48489, January 30, 1943 ]

PERFECTO M. ALEJO, PLAINTIFF, VS. PABLO S. SISON, DEFENDANT. BENEDICTO JAVIER, ASSIGNEE OF PABLO S. SISON, APPELLEE; VISAYAN SURETY AND INSURANCE CORPORATION, BONDSMAN AND APPELLANT.

D E C I S I O N

OZAETA, J.:

In civil case No. 53926 of  the Court of First Instance of Manila,  entitled "Perfecto M. Alejo vs. Pablo  S. Sison," for a  sum of  money, the plaintiff procured a writ of preliminary  attachment which was  levied upon  the personalties  of the defendant.  The herein appellant Visayan Surety and Insurance Corporation executed  a bond  of P1,000 "under the condition that  it and the plaintiff will pay all costs  which may be  adjudged to the defendant  Pablo S. Sison, and all damages which the said defendant  may sustain by reason of the attachment if the same shall finally be adjudged to have been  wrongful or without  sufficient cause."   After the trial of the case  on the merits, Judge Sixto de la Costa, on November 27, 1940, dismissed the complaint with costs against the plaintiff.  Thereafter, and on March 24,  1941, the attorneys for the defendant presented a bill of costs aggregating P934.04, the largest  items of which were the following:
Clerk's fees in re guarding  of defendant'schattels  (Exhs. "21" to "21-h")  ..........
P813.00
 
Ditto in re storage of defendant's  automobile (Exh. "23")........................   
91.60
 
Copy  of said bill of costs  Was served on the attorney for the plaintiff on the same date, March 24,  1941.   A week later, that is to say, on March 31, 1941, the  defendant petitioned the court  for  the issuance of  a writ of execution against  the plaintiff "in accordance with the judgment rendered by this  court on November 27, 1940, and the bill of costs  filed."   That petition was granted by Judge  de la Costa "como se pide."  On April  8, 1941, the clerk of court sent a notice to the attorneys for both parties setting the bill of costs for hearing before him on April  15, 1941, at 9:30  a.m.  It does not appear that  either  the plaintiff or his attorney objected then or at any other  time to any of the items of the  bill  of  costs presented by the defendant. Evidently the clerk of court taxed the costs as claimed by the defendant, from which taxation  of costs the plaintiff did not appeal to the court; for a writ of execution was thereafter  issued against the plaintiff  to enforce the  collection of the costs.  That writ, however, was subsequently returned unsatisfied by the sheriff, who reported that the plaintiff was insolvent.

Thereafter, and on May 5, 1941, the herein appellee Benedicto  Javier, as assignee of  the defendant, presented a motion in court for the issuance of a writ of execution against the appellant Visayan Surety  and Insurance Corporation, as plaintiff's bondsman, to make good its bond above mentioned.  That motion was opposed by the Visayan  Surety and Insurance Corporation, which contested the legality of the two items of costs hereinbefore set forth.  Judge Jose R. Carlos, in his order dated May 21, 1941, overruled the opposition and granted Benedicto Javier's  motion for the issuance of  a writ of execution against the herein appellant.  Hence this appeal.

The appellant insists  that the trial court should have sustained appellant's objection to the inclusion in the bill of costs of  the expenses  defrayed by the defendant  for guarding his chattels  and for the storage  of his automobile in connection with the maintenance of  the attachment thereon.

Section 8  of Rule 131 of the Rules of Court provides as follows:
"Sec. 8. Costs,  how  taxed. In inferior  courts,  the costs shall be taxed by the justice of the peace or municipal judge and included  in the judgment.  In superior  courts, costs shall be taxed by the clerk on five days' written notice given by the prevailing party to the  adverse party. With  this notice shall be served a statement of the items of costs claimed by the prevailing party,  verified  by his oath or that of his attorney.  Objections to the taxation shall be made in writing, specifying the items objected to. Either party may appeal to the court from  the clerk's taxation.  The costs shall be  inserted in the judgment if taxed before its entry, and payment thereof shall  be enforced by execution."
The plaintiff,  in whose shoes the appellant now stands, aside  from the  reglementary five  days' notice  given him by the defendant, was given by the clerk of court another notice of a hearing on the taxation of the costs, but did not avail himself of the opportunity to present any objection thereto.  Neither did he appeal to the court from the clerk's taxation.

Altho section 8 of Rule  131 above quoted does not fix the time within which either party may  appeal to the court from the clerk's taxation, we cannot regard appellant's objection to appellee's motion for the issuance of a  writ of execution- against appellant as  an appeal,  and much less as a timely appeal, from the clerk's taxation to the court. The appellant surety or its principal,  the plaintiff, should have presented the appeal expressly, in due  form, and within a reasonable time.  We fix five days from the date of notice of the clerk's taxation  as a reasonable time within which to present such appeal.

Since the clerk's taxation of costs had become  final, it was no longer reviewable by the court when appellant presented  its objection thereto in connection with its  opposition to appellee's motion for the issuance of a writ of execution.

The  order  appealed from is affirmed, without any  finding as to costs in this instance wherein appellee entered no appearance.  So ordered.

Yulo, C. J., Moran, Paras, and Bocobo, JJ., concur.

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