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[FEDERICO HIDALGO v. A. S. CROSSFIELD](https://www.lawyerly.ph/juris/view/cf61?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 6492, Dec 09, 1910 ]

FEDERICO HIDALGO v. A. S. CROSSFIELD +

DECISION

17 Phil. 466

[ G. R. No. 6492, December 09, 1910 ]

FEDERICO HIDALGO, PLAINTIFF, VS. A. S. CROSSFIELD AND JOSE DE LA PENA Y DE RAMON, AS ADMINISTRATOR OF THE ESTATE OF JOSE DE LA PENA Y GOMIZ, DEFENDANTS.

D E C I S I O N

CARSON, J.:

This is  an original action, instituted in this court under the provisions of section 515 of the Code of Civil Procedure, wherein the petitioner prays that a writ  of  mandamus be issued, directed to the  Hon, A. S.  Crossfield, judge of the Court  of First Instance, directing Him to execute and carry out the judgment of this court, rendered on appeal on the 17th day of August, 1910, in the case of De la Pena vs. Hidalgo.[1]

Petitioner alleges that on the 11th day of October he appeared by  his attorney in the Court of  First Instance of the city of Manila, and orally prayed the judge thereof, the  Hon. A. S. Crossfield, to issue a writ  of execution  on the above-mentioned judgment, and at the same time to  issue an order directing the clerk to turn over to him a certain cash deposit,. which petitioner alleges he placed in the hands of the clerk in lieu of an appeal bond in the course of the proceedings had in the court below, and to the release of which as he alleges, he was entitled as a necessary and immediate consequence of the judgment of this court rendered on the appeal of the case above-mentioned.  Petitioner further  alleges that respondent refused to issue execution on the judgment in question, and declined to order the clerk to  turn over the cash deposit as requested.

Respondent denies that  petitioner or his attorney did in fact ask for the issuance of execution, and disclaiming all intent or desire to fail or neglect to comply with the terms of the judgment in question, so far as it imposed any duty upon him, alleges that in response to the request for an order directing the turning over of the cash deposit in the hands of the clerk to the petitioner, he, the respondent, informed counsel for the petitioner that he  would take the proper action in that regard as soon as the parties in interest had been duly notified, and he had time to examine the judgment by virtue of which petitioner claimed the right to the deposit. The record discloses that on the day the application for the release of the  deposit was made, an order was issued by respondent to the various parties in interest to appear within four days from the date thereof and show cause if any they had, why the deposit should not be released.

There is considerable conflict in the testimony as to precisely what occurred on the occasion when counsel for petitioner appeared in open court, and as he alleges, orally moved the court to issue execution on the judgment of this court, and to order the release of the cash deposit; but it  is not necessary for us to make any findings on the disputed facts, because we are of opinion that, granting the truth of the petitioner's allegations and of the  evidence  he submitted in support thereof,  and taking into  consideration only those allegations of respondent which are supported by  the testimony offered by him and  uncontroverted by the evidence offered by the petitioner,  the writ of mandamus  prayed for should not issue.

The issuing of an execution is a ministerial act, and must be carefully distinguished from the awarding of an execution, which is a judicial act.  "To award is to adjudge, to give  anything  by judicial sentence/' and when  it is said that  a party is awarded an execution upon a judgment it should be understood thereby that it is judicially declared that  the party  has a right to have the judgment executed. It need not, therefore, be expressly granted nor even mentioned in the judgment.   The prevailing party  is always entitled  as  of right to the execution of  the  judgment  in the manner and form prescribed by  law,  so that the very act of granting judgment is of itself an award of execution thereon.   (Freeman on Executions, 3d edition, Vol. I, par. 9a, and cases there cited.)  The right of a party to have an execution having been duly adjudged, the mere issuing  of the writ when  the time for  its issuance  as prescribed by law has arrived; that is to say, the preparation and delivery of the formal writ or order to the sheriff, or other officer charged with the execution of judgments, directing him  to proceed with the execution is a mere compliance with the provisions  of the award of judgment, and essentially a purely ministerial act.

In  the absence of  statutory provisions  to the  contrary, and speaking generally,  all courts  which  have power and jurisdiction  to render judgments have inherent powers to enforce such judgments, for "If a court is competent to pronounce judgment, it  must be equally competent to  issue execution to  obtain its  satisfaction.  A court without the means of executing its judgment and decrees would be an anomaly  in  jurisprudence, not  deserving the name  of  a judicial tribunal.  It would be idle to adjudicate what could not be executed,  and the power to pronounce necessarily implies  the  power  of execution."   (U.  S.  vs. Drennan, Hemp., 325.)  Hence where the  statute does not otherwise provide,  and when  a party has a right  to  execution,  it becomes the  imperative duty of the court to issue the proper writ;  and this duty  will necessarily be  performed  by the judge or  justice himself when the court has no clerk; but when  the court has a clerk, in whose hands is intrusted the court seal,  and who is charged with  the  keeping of the court records and the issuance of process under the seal of the court, the imperative duty of issuing the writ of execution, which in such cases as we have seen is purely a ministerial function of the court, manifestly devolves upon him, unless in a particular case  the judge elects to perform the duty  himself instead  of intrusting it to  his ministerial officer.

It is  evident, therefore, that in the absence of statutory designation of the officer or person whose duty it is to issue execution,  mandamus  will  lie to the judge  or justice of an inferior court who has no cleric; but that  under similar circumstances mandamus will not lie to the judge if the court has  a clerk who could issue the writ, because in such cases the duty of issuing the  writ is not obligatory on the judge, who may, and in general does leave the performance of this  purely ministerial function of the court to the clerk.  And on the other hand, the  duty being imperative and  obligatory upon the clerk, the  writ in  such cases properly lies to  him  in the event of his refusal or neglect to perform it.

Our statute, section 444 of Act No. 190, expressly provides that writs of execution must be "sealed with the  seal of the court,  and subscribed by the judge, or clerk thereof," and it has been suggested that the effect of this provision is to impose the duty on each of these officers, so  that in the event of the failure of either of them to perform it when called upon  to do so by a party entitled to the writ, mandamus should issue to compel him to perform the duty thus imposed  upon him.  We do not think so.  This proision in so far as a grant of authority to the judge and clerk to issue writs is to be inferred therefrom, is merely declarative of the authority, which, as we have seen, might be exercised by those officers of the court in the absence of express statutory provisions.  It does not, in  itself, impose the imperative duty of issuing these writs on either the judge or clerk.  It merely declares that either of  these  officers may, and that one of them must subscribe the writ, and we must look elsewhere in seeking to determine whether the imperative duty is imposed by statute upon either of them.

Section 384 of the Code of Civil Procedure, which treats of the general duties of clerks of Courts of First Instance provides that:
"The clerk shall be the recording officer of all the proceedings of the court.  He or his deputy may, at any time, receive and  file all complaints, answers, motions, reports, injunctions,  orders, judgments, decrees,  or  other  papers affecting  an action  or special proceeding offered for the purpose;  and shall indorse upon all such papers the time when and the party by whom they were respectively filed, and may  issue, under the seal  of the court,  all process authorized by law to be issued by him and  proper in any action or  proceeding  pending in  the  court  of which  he is clerk.   *  *  *."
This provision of the code,  read together with the  provision which requires the name of the judge or clerk to be subscribed to  the writ expressly confers authority and imposes the duty upon  the clerks  of  the Courts of First Instance to issue writs of execution; and since, as we  have seen, the issuance of the writ in a proper case is  a purely ministerial function of the court, the duty thus imposed on the clerk becomes an  imperative one when he is requested to issue the writ by a judgment creditor who is entitled to execution on his judgment.   But there is no provision of  law which expressly  or by implication  imposes the  imperative duty of performing this ministerial function of the court upon the judge when the court is provided with a clerk.  On the contrary, the code clearly recognizes the right of the  judge to leave the issuance  of executions to the proper ministerial officer, in the various sections  which provide that by special order the judge may "direct" that execution issue in certain cases.  In no case  does it provide that a judge himself shall issue  the  execution  when the court is provided with a clerk.  And the various provisions of  the code  touching the functions of the  various officers of  the Court of  First Instance clearly indicate that such  courts being  provided with a clerk, the judge may, and in the orderly conduct of the business of his  court, he usually  should leave  to  the proper ministerial officers of the  court  the performance of this, as  well as  all  other ministerial functions  which these officers are authorized to perform.

The  imperative  duty of issuing  writs  of  execution  not being imposed by statute upon the judges of Courts of First Instance, a judge of one of these courts is strictly within his  rights when he leaves the performance of this purely ministerial duty to the clerk, and it is manifest that mandamus will not lie to compel him to issue the writ.

The prayer of the  petitioner for mandamus to the judge of the court below, in so  far as it  is based on his failure to direct the release of the fund on deposit  in the  hands of the clerk of the court may be disposed of without much discussion.  The record  clearly discloses, and petitioner substantially admits  that respondent  did not absolutely refuse to  issue the order; and that,  on the contrary,  he informed counsel for petitioner that he would do what was proper in that regard, but that first it would be necessary for him to carefully  acquaint himself with the  contents of the judgment of this court, for the purpose of ascertaining its true meaning and effect; and further, that before issuing the order the various parties in interest should be notified and given an opportunity  to  show cause, if any they had, why the order should not issue, intimating as one of the reasons for giving all  the parties an opportunity to be heard, that in the event that any of the parties were  to perfect  an appeal from the judgment of this  court  to  the Supreme Court of the United States, the release of the deposit might not be justified.

Without deciding whether, in any event,  an appeal  of the judgment of this court to the Supreme  Court of the United States would or would not have furnished a sufficient reason for denying the motion to release the deposit in the event that this question had been raised, we are of opinion that the prayer for mandamus based as it is on respondent's refusal to  issue the order  without first giving the parties in  interest an opportunity to be heard should be  denied. The release of the  deposit was not expressly  directed in the judgment of this court which was certified to the court below, and the right of petitioner thereto  is at most  an inference to be drawn  from the terms of  the judgment. While we can conceive of instances wherein an inference of this nature might be so clear, definite, and free from doubt as  to justify a court in  acting .thereon without having  all the 'parties to the action before it; nevertheless, we think that in any case wherein there  is no final  judgment, order or  decree expressly directing the release of such a deposit, the better practice would be te decline to issue an order for its  release unless it appears that all the parties in  interest have had notice of motion therefor, and an  opportunity to be heard to show cause, if any they have, why it should not issue.   The very fact that money is deposited with the court implies, as a rule, that there  are in the proceedings different parties claiming an interest therein, and  in  the absence of  a final and  unappealable judgment,  order,  or decree expressly  adjudicating the  rights  of the  various claimants thereto, the turning  over of  such funds on an ex parte motion would be an extremely dangerous practice which might lead to great abuse.

The petition for a writ of mandamus should be dismissed with the costs against the petitioner.  So ordered.

Arellano, C. J.,  Mapa, Johnson, Moreland, and Trent, JJ., concur.



[1] 16 Phil. Rep., 450.





CONCURRING


TORRES, J.,

The  undersigned, though  he concurs in  the  denial  of the remedy of the writ of mandamus applied for by Federico Hidalgo's counsel,  does not concur upon the grounds stated in the decision by the majority.

It is true that  the fulfillment of a final judgment and the  issuing of the  writ of execution pursuant thereupon is a ministerial duty  and act of the court, but  the undersigned understands that once that a judgment which had brought a suit to a close, has become final, or immediately the court has received the decision rendered by the Supreme Court by virtue of an appeal taken from the  judgment  of  the Court of First  Instance, whether such decision  in  second instance be one of affirmation or reversal,  if the judge within a reasonable delay should not issue an order providing for the fulfillment and execution of the final judgment, whether pronounced in  first instance or in second instance on appeal, the  party interested  in  the  conclusion  of  the suit should apply to the judge by means of a written motion praying for the fulfillment of the executory judgment and the issuance of  the proper writ of execution.

The written motion is deemed necessary and conducive to a good administration of justice, for thereby it would be shown in the record whether the interested party's prayer is in accord and agreement with the sense  and terms of his motion, or whether  he requests therein something different and  not  included within the final judgment,  the execution of which he seeks.  Moreover, the ruling  of  the judge on the said motion, admitting or denying it,  would in turn show, in an authentic manner,  whether the latter was or was not  in agreement with the said final judgment and the legal provisions  in  force.   I do not believe it proper, nor in accordance with the principles of procedural law, to  address  verbal petitions to the judges on such important points as the fulfillment and  execution of an  executory judgment.  It is reasonable to admit that the judge may be spoken  to regarding points of slight importance, or that a verbal petition  be addressed to him asking him to rule on a written petition or motion previously presented and of  which he, has knowledge,  but I  do not esteem it conducive to a good and  right administration of justice that petitions relative to features of the  utmost importance in a suit be made verbally, nor that the judges rule on such verbal petitions likewise viva voce.

It behooves the serenity of justice and the seriousness which should always  be the concomitant of  judicial acts, that every proceeding be recorded in writing, so that at any time and place the truth of what occurred in the courts may always be evident, without the slightest doubt.

With respect to the ministerial duty of the clerk of the court in connection with the issuance of the writ of execution,  I  believe that the  clerk never  ought to issue a writ of  execution  without the  previous existence of a ruling, order, or decision of the  judge providing for the fulfillment cf a final judgment and the issuance of the writ of execution, in which case the clerk of the court  is in  duty bound to issue the writ of execution already  ordered by the judge. The form  of the writ  is  immaterial  and  it matters not whether it be  issued under the signature of  the judge and of  the clerk or the  latter's alone,  but it would be the most  expedient,  in  my opinion,  inasmuch as  its  issuance has already previously been ordered by the judge, for the writ to issue by order of the judge with the signature only of the clerk of the court and the  proper seal.

For the  foregoing reasons, and in view of  the fact that the petition of the plaintiff Hidalgo as well as the ruling of the judge thereon, were  both merely verbal, it is proper, in my opinion, to deny the application for a writ  of mandamus.

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