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616 SUPREME COURT REPORTS ANNOTATED

Commissioner of Public Highways vs. San Diego

No. L-30098. February 18, 1970.

THE COMMISSIONER OP PUBLIC HIGHWAYS and the


AUDITOR GENERAL, petitioners, vs. HON.LOURDES P.
SAN DIEGO, as Presiding Judge of the Court of First
Instance of Rizal, Branch IX, sitting in Quezon City,
TESTATE ESTATE OF N. T. HASHIM (Special
Proceedings No. 71131 of the Court of First Instance of
Manila) represented by its Judicial Administrator, Tomas
N. Hashim, TOMAS N. HASHIM, personally, and as
Judicial Administrator of the Estate of Hashim, Special
Proceedings No. 71131 of the Court of First Instance of
Manila, ALL THE LEGAL OR TESTAMENTARY HEIRS
of the Estate of Hashim, MANUEL^ C.
FLORENDO,personally as Deputy Clerk, Court of First
Instance of Rizal, Quezon City, Branch IX, BENJAMIN
GARCIA,as “Special Sheriff appointed by respondent Judge
Lourdes P. San Diego, BENJAMIN V. CORUfU, personally
and as Chief Documentation Staff, Legal Department,
Philippine National Bank, and the PHILIPPINE
NATIONAL BANK, respondents.

Remedial law; Actions; Parties; Doctrine of immunity from


suit does not apply to expropriation proceedings.—It is elementary
that in expropriation proceedings, the state precisely submits to
the court’s jurisdiction and asks the court to affirm its lawful
right to take the property sought to be expropriated for the public
use or purpose described in its complaint and to determine the
amount of just compensation to be paid therefore. The doctrine of
immunity of the state from suit does not apply.
Civil law; Agency; Third person cannot question lack of
authority of agent—In an expropriation proceeding, the State
cannot raise the alleged lack of authority of the counsel of the
owner of the property to bind his client in a compromise
agreement because such lack of authority may be questioned only
by the principal or client.
Civil procedure; Execution; Remedial law; Expropriation;
Execution of judgment against government; Need for a law ap-

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VOL. 31, FEBRUARY 18, 1970 617

Commissioner of Public Highways vs. San Diego

propriating money for the purpose.—Although the government, as


plaintiff in expropriation proceedings, submits itself to the
jurisdiction of the court and thereby waives its immunity from
suit, the judgment that is thus rendered requiring its payment of
the award determined as just compensation for the condemned
property as a condition precedent to the transfer to the title
thereto in its favor, cannot be realized upon execution. The
legislature must first appropriate the amount, over and above the
provisional deposit, that may be necessary to pay the award
determined in the judgment, since the government cannot keep
the land and dishonor the judgment.
Same; Same; Same; Same; Deposit of government funds in
PNB under a current account subject to withdmival by check;
Effect.—All government funds deposited with PNB by any agency
or instrumentality of the government, whether by way of general
or special deposit, remain government funds, since such
government agencies or instrumentalities do not have any
nonpublic or private funds of their own. They are not subject to
garnishment or levy; even assuming that the funds become
commingled with other funds of the bank, this does not remove
the character of the funds as a credit representing government
funds thus deposited.
Same; Same; Same; Practice of appointing “special sher-iffs”
for service of writs of execution not authorized by law.—The
general practice of lower courts of appointing “special sher-iffs” for
the service of writs of execution is unauthorized by law. The duty
of executing all processes of the courts in civil cases, particularly,
writs of execution, devolves upon the sheriff or his deputies, under
Section 183 of the Revised Administrative Code and Rule 39,
Section 8 of the Rules of Court. Unlike the service of summons
which may be mafle, aside from the sheriff or other proper court
officers, “for special reasons by any person especially authorized
by the judge of the court issuing the summons” under Rule 14,
Section 5 of the Rules of Court,, the law requires that the
responsibility of serving writs of execu-tion, which involve the
taking delivery of money or property in trust for the judgment
creditor, should be carried out by regularly bonded sheriffs or
other proper court officers.(Sections 183 and 330, Revised
Administrative Code.) The bond required by law of the sheriff is
conditioned inter alia “for the delivery or payment to the
Government, or the persons entitled thereto, of alf the property or
sums of money that shall officially come into his or their
(deputies’) hands” (Section 330, idem.), and thus avoids the risk of
embezzlement of such properties and moneys. Section 185 of the
Revised Administrative Code restric-

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618 SUPREME COURT REPORTS ANNOTATED

Commissioner of Public Highways vs. San Diego

tively authorizes the judge of the court issuing: the process or writ
to deputize some suitable person only when the sheriff is party to
any action or proceeding or is otherwise incompetent to serve
process therein.” The only other contingency provided by law is
when the office of sheriff is vacant, and the judge is then
authorized, “in case of emergency, to make a temporary
appointment to the office of sheriff x x x’pending the appoint ment
and qualification of the sheriff in due course; and he may appoint
the deputy clerk of the court or other officer in the government
service to act in said capacity.” (Sec. 189, idem.)

SPECIAL CIVIL ACTION for certiorari and prohibition.

The facts are stated in the opinion of the court.


     The Solicitor General for petitioners.
     Paredes, Poblador, Nazareno, Abada & Tomacruz for
respondent Judge Lourdes P. San Diego.
     Jesus B. Santos for respondent Testate estate of N. T.
Hashim.
     Jose A. Buendia for respondent Manuela C. Florendo.
     Emata, Magkawas & Associates for respondent legal
heir Jose H. Hashim.
          Alberto 0. Villaraza for respondents Estate of N.T.
Hashim and Tomas N. Hashim.
          Conrado E. Medina for respondent Philippine
National Bank.
     Benjamin V. Coruna for and in his own behalf.

TEEHANKEE, J.:

In this special civil action for certiorari and prohibition, the


Court declares null and void the two questioned orders of
respondent Court levying upon funds of petitioner Bureau
of Public Highways on deposit with the Philippine National
Bank, by virtue of the fundamental precept that
government funds are not subject to execution or
garnishment.
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VOL. 31, FEBRUARY 18, 1970 619


Commissioner of Public Highways vs. San Diego

The background facts follow:


On or about November 20, 1940, the Government of the
Philippines filed a complaint for 1
eminent domain in the
Court of First Instance of Rizal for the expropriation of a
parcel of land belonging to N. T. Hashim, with an area of
14,934 square meters, needed to construct a public road,
now known as Epifanio de los Santos Avenue. On
November 25, 1940, the Government took possession of the
property upon deposit with the City Treasurer of the sum
of P23,413.64 fixed by the Court therein as the provisional
value of all the lots needed to construct the road, including
Hashim’s property. The records of the expropriation case
were destroyed and lost during the second world war, and
neither party took any step thereafter to reconstitute the
proceedings.
In 1958, however, the estate of N.T. Hashim, deceased,
through its Judicial Administrator, Tomas N. Hashim, filed
a money claim with the Quezon City Engineer’s Office in
the sum of P522,620.00, alleging said amount to be the fair
market value of the property in question, now already
converted and used as a public highway. Netting having
come out of its claim, respondent estate filed on August 6,
1963, with the Court of First Instance of Rizal, Quezon City
Branch,2
assigned to Branch IX, presided by respondent
judge, a complaint for the recovery of the fair market price
of the said property in the sum of P672,030.00 against the
Bureau of Public Highways, which complaint was amended
on August 26, 1963, to include as additional defendants,3
the Auditor General and the City Engineer of Quezon City.
The issues were joined in the case with the filing by then
Solicitor General Arturo A. Alafriz of the State’s answer,
stating that the Hashim estate was entitled only to the
sum of P3,203.00 as the fair market value of the property
at the time that the State took possession there-

_______________
1 Civil Case No. 7906, entitled Commonwealth of the Philippines vs. N.
T. Hashim.
2 Now Associate Justice of the Court of Appeals.
3 Civil Case No. Q-7441, entitled Testate Estate of N.T. Hashim vs. the
Auditor General, et al.

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620 SUPREME COURT REPORTS ANNOTATED


Commissioner of Public Highways vs. San Diego

of on November 25. 1940, with legal interest thereon at 6%


per annum, and that said amount had been available and
tendered by petitioner Bureau since 1958. The parties
thereafter worked out a compromise agreement,
respondent estate having proposed on April 28, 1966, a
payment of P14.00 per sq. m. for its 14,934 sq.m.-parcel of
land or the total amount of4 P209,076,00, equivalent to the
land’s total assessed value, which was confirmed, ratified
and approved in November, 1966 by the Commissioner of
Public Highways and the Secretary of Public Works and
Communications. On November 7, 1966, the Compromise
Agreement subscribed by counsel for respondent estate and
by then Solicitor General Antonio P. Barredo, now a
member of this Court, was submitted to the lower Court
and under date of November 8, 1966, respondent judge, as
prayed for, rendered judgment approving the Compromise
Agreement and ordering petitioners, as defendants therein,
to pay respondent estate as plaintiff therein, the total sum
of P209,076.00 for the expropriated lot.
On October 10, 1968, respondent estate filed with the
lower Court a motion for the issuance of a writ of execution,
alleging that petitioners had failed to satisfy the judgment
in its favor. It further filed on October 12, 1968, an ex-parte
motion for the appointment of respondent Benjamin Garcia
as special sheriff to serve the writ of execution. No
opposition having been filed by the Solicitor General’s office
to the motion for execution at the hearing thereof on
October 12, 1968, respondent judge, in an order dated
October 14, 1968, granted both motions.
On the same date, October 14. 1968, respondent Garcia,
as special sheriff, forthwith served a Notice of
Garnishment, together with the writ of execution dated
October 14, 1968, issued by respondent Manuela C.
Florendo as Deputy Clerk of Court, on respondent
Philippine National Bank, notifying said bank that levy
was thereby made upon funds of petitioners Bureau of
Public Highways and the
_______________

4 Amended Complaint, par. 16, Annex A of Petition.

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VOL, 31, FEBRUARY 18, 1970 621


Commissioner of Public Highways vs. San Diego

Auditor General on deposit, with the bank to cover the


judgment of P209,076.00 in favor of respondent estate, and
requesting the bank to reply to the garnishment within five
days. On October 16, 1968, three days before the expiration
of the five-day deadline, respondent Benjamin V. Coruña in
his capacity as Chief, Documentation Staff, of respondent
bank’s Legal Department, allegedly acting in excess of his
authority and without the knowledge and consent of the
Board of Directors and other ranking officials of respondent
bank, replied to the notice of garnishment that in
compliance therewith, the bank was holding the amount of
P209,076.00 from the account of petitioner Bureau of
Public Highways. Respondent bank alleged that when it
was served with Notice to Deliver Money signed by
respondent Garcia, as special sheriff, on October 17, 1968,
it sent a letter to the officials of the Bureau of Public
Highways notifying them of the notice of garnishment.
Under date of October 16, 1968, respondent estate
further filed with the lower Court*an ex-parte motion for
the issuance of an order ordering respondent bank to
release and deliver to the special sheriff, respondent
Garcia, the garnished amount of P209,076.00 deposited
under the account of petitioner Bureau, which motion was
granted by respondent judge in an order of October 18,
1968. On the same day, October 18, 1968, respondent
Coruña, allegedly taking advantage of his position,
authorized the issuance of a cashier’s check of the bank in
the amount of P209,076.00, taken out of the funds of
petitioner Bureau deposited in current account with the
bank and paid the same to respondent estate, without
notice to said petitioner.
Later on December 20, 1968, petitioners, through then
Solicitor General Felix V. Makasiar, wrote respondent
bank complaining that the bank acted precipitately in
having delivered such a substantial amount to the special
sheriff without affording petitioner Bureau a reasonable
time to contest the validity of the garnishment,
notwithstanding the bank’s being charged with legal
knowledge that gov-
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622 SUPREME COURT REPORTS ANNOTATED


Commissioner of Public Highways vs. San Diego

ernment funds are exempt from execution or garnishment,


and demanding that the bank credit the said petitioner’s
account in the amount of P209,076.00, which the bank had
allowed to be illegally garnished. Respondent bank replied
on January 6, 1969 that it was not liable for the said
garnishment of government funds, alleging that it was not
for the bank to decide the question of legality of the
garnishment order and that much as it wanted to wait
until it heard from the Bureau of Public Highways, it was
“helpless to refuse delivery under th§ teeth” of the special
order of October 18, 1968, directing immediate delivery of
the garnished amount.
Petitioners therefore filed on January 28, 1969 the
present action against respondents, in their capacities as
above stated in the title of this case, praying for judgment
declaring void the question orders of respondent Court.
Petitioners also sought the issuance of a writ of
preliminary mandatory injunction for the immedate
reimbursement of the garnished sum of P209,076.00,
constituting funds of petitioner Bureau on deposit with the
Philippine National Bank as official depository of
Philippine Government funds, to the said petitioner’s
account with the bank, so as to forestall the dissipation of
said funds, which the government had allocated to its
public highways and infrastructure projects. The Court
ordered on January 31. 1969 the issuance of the writ
against the principal respondents solidarity, including
respondent judge therein so that she would take forthwith
all the necessary measures and processes to compel the
immediate return of the said government funds 5
to
petitioner Bureau’s account with respondent bank.
In compliance with the writ, respondent bank restored
the garnished sum 6
of P209,076.00 to petitioner Bureau’s
account with it. The primary responsibility for the
reimbursement of said amount to petitioner Bureau’s
account with the respondent bank, however, rested solely
on respon-

_______________

5 Resolution of April 16, 1969.


6 PNB Manifestation dated February 11, 1969.
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VOL. 31, FEBRUARY 18, 1970 623


Commissioner of Public Highways vs. San Diego

dent estate, since it is the judgment creditor that received


the amount upon the questioned execution.
Strangely enough, as appears now from respondent 7
bank’s memorandum in lieu of oral argument what
respondent bank did, acting through respondent Coruna as
its counsel, was not to ask respondent estate to remburse it
in turn in the same amount, but to file with8 the probate
court with jurisdiction over respondent estate, a motion for
the estate to deposit the said amount with it, purportedly
in compliance with the writ. Respondent estate thereupon
deposited with respondent bank as a savings account the
sum of P125,446.00, on which the bank presumably would
pay the usual interest, besides. As to the balance of
!P83,630.00, this sum had been in the interval paid as
attorney’s fees to Atty. Jesus B. Santos, counsel for the
estate, by the administrator,
9
allegedly without authority of
the probate court. Accordingly, respondent estate has not
reimbursed the respondent bank either as to this last
amount, and the bank has complacently not taken any
steps in the lower court to require such reimbursement.
The ancillary questions now belatedly raised by the
State may readily be disposed of. Petitioners may not
invoke the State’s immunity from suit, since the case below
was but a continuation in effect of the pre-war
expropriation proceedings instituted by the State itself.
The expropriation of the property, which now forms part of
Epifanio de los Santos Avenue, is a fait accompli and is not
questioned by the respondent estate. The only question at
issue was the amount of the just compensation due to
respondent estate in payment of the expropriated property,
which10 properly pertained to the jurisdiction of the lower
court. It is elementary that in expropriation proceed-

_______________

7 Filed on April 14, 1969.


8 Court of First Instance of Manila, Sp. Proc. No. 71131, entitled
“Testate Estate of N. T. Hashim, deceased, Tomas N. Hashim,
administrator.’
9 Respondent heir Jose Hashim’s “Motion to Resolve Petition” of
November 10, 1969.
10 R. A. 296, Section 44; Rule 67, Rules of Court.
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624 SUPREME COURT REPORTS ANNOTATED


Commissioner of Public Highways vs. San Diego

ings, the State precisely submits to the Court’s jurisdiction


and asks the Court to affirm its lawful right to take the
property sought to be expropriated for the public use or
purpose described in its complaint and to determine the
amount of just compensation to be paid therefor.
Neither may the State impugn the validity of the
compromise agreement executed by the Solicitor General
on behalf of the State with the approval of the proper
government officials, on the ground that it was executed
only by the lawyer of respondent estate, without any
showing of having been specially authorized to bind the
estate thereby, because such alleged lack of authority may
be questioned only by the principal or client, and
respondent estate as such principal has on the contrary
11
confirmed and ratified the compromise agreement. As a
matter of fact, the Solicitor General, in representation of
the State, makes in the petition no prayer for the
annulment of the compromise agreement or of the
respondent court’s decision approving the same.
On the principal issue, the Court holds that respondent
Court’s two questioned orders (1) for execution of the
judgment, in pursuance whereof respondent deputy clerk
issued the corresponding writ of execution and respondent
special sheriff issued the notice of garnishment, and (2) for
delivery of the garnished amount of P209,076.00 to
respondent estate as judgment creditor through respondent
special sheriff, are null and void on the fundamental
ground that government funds are not subject to execution
or garnishment.
1. As early as 1919, the Court has pointed out that
although the Government, as plaintiff in expropriation
proceedings, submits itself to the jurisdiction of the Court
and thereby waives its immunity from suit, the judgment
that is thus rendered requiring its payment of the award
determined as just compensation for the condemned
property as a condition precedent to the transfer to the12title
thereto in its favor, cannot be realized upon execution.

_______________

11 Article 1901, Civil Code.


12 Visayan Refining Co. vs. Camus & Paredes, 40 Phil. 550, 562 (Dec. 3,
1919). Vide Director of Commerce vs. Concepcion, 43 Phil. 384 (May 22,
1922).

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VOL. 31, FEBRUARY 18, 1970 625


Commissioner of Public Highways vs. San Diego

The Court there added that it is incumbent upon the


legislature to appropriate any additional amount, over and
above the provisional deposit, that may be necessary to pay
the award determined in the judgment, since the
Government cannot keep the land and dishonor the
judgment.
In another early case, where the government by an act
of the Philippine Legislature, expressly consented to be
sued by the plaintiff in an action for damages and waived
its immunity from suit, the Court adjudged the
Government as not being legally liable on the complaint,
since the State under our laws would be liable only for torts
caused by its special agents, specially commissioned to
carry out the acts complained of outside of such agents’
regular duties. We held that the plaintiff would have to
look to the legislature for another legislative enactment
and appropriation of sufficient funds, if the Government
intended itself to be legally liable only for the damages
sustained by plaintiff
13
as a result of the negligent act of one
of its employees.
The universal rule that where the State gives its consent
to be sued by private parties either by general or special
law, it may limit claimant’s action “only up to the
completion of proceedings anterior to the stage of
execution” and that the power of the Courts ends when the
judgment is rendered, since government funds and
properties may not be seized under writs of execution or
garnishment to satisfy such judgments, is based on obvious
considerations of public policy. Disbursements of public
funds must be covered by the corresponding appropriation
as required by law. The functions and public services
rendered by the State cannot be allowed to be paralyzed or
disrupted by the diversion of public funds from their
legitimate and specific objects, as appropriated by law.

_______________

13 Merritt vs. Government of P.L, 34 Phil. 311, (March 21, 1916).


626

626 SUPREME COURT REPORTS ANNOTATED


Commissioner of Public Highways vs. San Diego

14
Thus, as pointed out by the Court in Belleng vs. Republic,
while the State has given its consent to be sued in
compensation cases, the pauper-claimant therein must look
specifically to the Compensation Guarantee Fund provided
by the Workmen’s Compensation Act for the corresponding
disbursement in satisfaction of his claim, since the State in
Act 3083, the general law waiving its immunity from suit
“upon any money claim involving liability arising from
contract express or implied,” imposed the limitation in Sec.
7 thereof that “no execution shall issue upon any judgment
rendered by any Court against the Government of the
(Philippines) under the provisions of this Act;” and that
otherwise, the claimant would have to prosecute his money
claim against the State under Commonwealth Act 327.
This doctrine was again stressed by the Court in
Republic vs. Palacio,15 setting aside as null and void the
order of garnishment issued by the sheriff pursuant to the
lower Court’s writ of execution on funds of the Pump
Irrigation Trust Fund in the account of the Government’s
Irrigation Service Unit with the Philippine National Bank.
The Court emphasized then and re-emphasizes now that
judgments against the State or its agencies and
instrumentalities in cases where the State has consented to
be sued, operate merely to liquidate and establish the
plaintiff’s claim; such judgments may not be enforced by
writs of execution or garnishment and it is for the
legislature to provide for their payment through the
corresponding appropriation, as indicated in Act 3083.
2. Respondent bank and its Chief, Documentation Staff,
respondent Coruña, have advanced two specious
arguments to justify their wrongful delivery of the
garnished public funds to respondent estate. Their first
contention that the said government funds by reason of
their being deposited by petitioner Bureau under a current
account subject to withdrawal by check, instead of being
deposited

_______________

14 L-19856, Nov. 16, 1963 (3 SCRA 6).


15 L-20322, May 29, 1968, 23 SCRA 899.

627
VOL. 31, FEBRUARY 18, 1970 627
Commissioner of Public Highways vs. San Diego

as special trust funds,


16
“lost their kind and character as
government funds,” is untenable. As the official depositary
of the Philippine Government, respondent bank and its
officials should be the first ones to know that all
government funds deposited with it by any agency or
instrumentality of the government, whether by way of
general or special deposit, remain government funds, since
such government agencies or instrumentalities do not have
any non-public or private funds of their own.
Their second contention that said government funds lost
their character as such “the17 moment they were deposited
with the respondent bank”, since the relation between a
depositor and a depository bank is that of creditor and
debtor, is just as untenable, absolutely. Said respondents
shockingly ignore the fact that said government funds were
deposited with respondent bank as the official depositary of
the Philippine Government. Assuming for the nonce the
creation of such relationship of creditor and debtor,
petitioner Bureau thereby held a credit against respondent
bank whose obligation as debtor was to pay upon demand
of said petitioner-creditor the public funds thus deposited
with it; even though title to the deposited funds passes to
the bank under this theory since the funds become mingled
with other funds which the bank may employ in its
ordinary business, what was garnished was not the bank’s
own funds but the credit of petitioner bureau against the
bank to receive payment of its funds, as a consequence of
which respondent bank delivered to respondent estate the
garnished amount of P209,076.00 belonging to said
petitioner, Petitioner bureau’s credit against respondent
bank thereby never lost its character as a credit
representing government funds thus deposited. The
moment the payment is made by respondent bank on such
deposit, what it pays out represents the public funds thus
deposited which are not garnishable and may be expended
only for their legitimate objects as authorized by the
corresponding legislative appropriation. Neither

_______________

16 Rollo, p. 248.
17 Id., p. 88.

628
628 SUPREME COURT REPORTS ANNOTATED
Commissioner of Public Highways vs. San Diego

respondent bank nor respondent Coruña are the duly


authorized disbursing officers and auditors of the
Government to authorize and cause payment of the public
funds of petitioner Bureau for the benefit or private
persons, as they wrongfully did in this case.
3. Respondents bank and Coruña next pretend that
refusal on their part to obey respondent judge’s order to
deliver the garnished amount, “which is valid and binding
unless 18annulled, would have exposed them for contempt of
court.” They make no excuse for not having asked the
lower court for time and opportunity to consult petitioner
Bureau or the Solicitor General with regard to the
garnishment and execution of said deposited public funds
which were allocated to specific government projects, or for
not having simply replied to the sheriff that what they held
on deposit for petitioner Bureau were non-garnishabie
government funds. They have not given any cogent reason
or explanation,—charged as they were with knowledge of
the nullity of the writ of execution and notice of
garnishment against government funds, for in the earlier
case of Republic vs. Palacio, supra, they had then
prudently and timely notified the proper government
officials of the attempted levy on the funds of the Irrigation
Service Unit deposited with it, thus enabling the Solicitor
General to take the corresponding action to annul the
garnishment—for their failure to follow the same prudent
course in this case. Indeed, the Court is appalled at the
improper haste and lack of circumspection with which
respondent Coruña and other responsible officials of
respondent bank precipitately allowed the garnishment
and delivery of the large amount involved, all within the
period of just four days, even before the expiration of the
five-day reglementary period to reply to the sheriff’s notice
of garnishment. Failure on the State’s part to oppose the
issuance of the writ of execution, which was patently null
and void as an execution against govern-

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18 Rollo, p. 126.

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VOL. 81, FEBRUARY 18, 1970 629


Commissioner of Public Highways vs. San Diego

ment funds, could not relieve them of their own


responsibility,
4. Respondents bank and Coruña further made common
cause with respondent estate beyond the legal issues that
should solely concern them, by reason of their having
wrongfully allowed the garnishment and delivery of
government funds, instead assailing petitioners for not
having come to court with “clean hands” and asserting that
in fairness, justice and equity, petitioners should not
impede, obstruct or in any way delay the payment of just
compensation to the land owners for their property that
was occupied way back in 1940. This matter of payment of
respondent estate’s judgment credit is of no concern to
them as custcfdian and depositary of the public funds
deposited with them, whereby they are charged with the
obligation of assuring that the funds are not illegally or
wrongfully paid out.
Since they have gone into the records of the
expropriation case, then it should be noted that they should
have considered the vital fact that at the time that the
compromise agreement therein was executed in November,
1966, respondent estate was well aware of the fact that the
funds for the payment of the property in the amount of
P209,076.00 still had to be released by the Budget
Commissioner and that at the time of the garnishment,
respondent estate was still making the necessary
representations for the corresponding release of such
amount, pursuant19 to the Budget Commissioner’s favorable
recommendation. And with regard to the merits of the
case, they should have likewise considered that respondent
estate could have no complaint against the fair attitude of
the authorities in not having insisted on their original
stand in their answer that respondent estate was entitled
only to the sum of P3,203.00 as the fair market value of the

_______________

19 Respondent Estate’s Answer, par. 11, Rollo, p. 132; Annexes 2 and 3


thereof.

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630 SUPREME COURT REPORTS ANNOTATED


Commissioner of Public Highways vs. San Diego
property at the time the State took possession thereof on
November 25, 1940, with legal interests thereon, but rather
agreed to pay therefor the greatly revised and increased
amount of P209,076.00 at P14.00 per square meter, not to
mention the consequential benefits derived by said
respondent from the construction of the public highway
with the resultant enhanced value of its remaining
properties in the area.
5. The manner in which respondent bank’s counsel and
officials proceeded to comply with the writ of preliminary
mandatory injunction issued by the Court commanding
respondent estate, its judicial administrator and
respondents bank and Coruña, in solidum, to reimburse
forthwith the account of petitioner Bureau in the garnished
amount of P209.076.00, does not speak well of their fidelity
to the bank’s interests. For while respondent bank had
restored with its own funds the said amount of P209,076.00
to petitioner Bureau’s account, it has not required
respondent estate as the party primarily liable therefor as
the recipient of the garnished amount to reimburse it in
turn in this same amount. Rather, said bank officials have
allowed respondent estate to keep all this time the whole
amount of P209,076.00 wrongfully garnished by it. For as
stated above, respondent bank allowed respondent estate
merely to deposit with it as a savings account, of
respondent estate, the lesser sum of P125,446.00 on which
the bank presumably has paid and continues paying
respondent estate, besides the usual interest rates on such
savings accounts, and neither has it taken any steps to
require reimbursement to it from respondent estate of the
remainder of P83.630.00 which respondent estate of its own
doing and responsibility paid by way of attorney’s fees.
It thus appears that all this time, respondent bank has
not been reimbursed by respondent estate as the party
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VOL. 31, FEBRUARY 18, 1970 631


Commissioner of Public Highways vs. San Diego

primarily liable for the whole amount of P209,076.00


wrongfully and illegally garnished and received by
respondent estate. This grave breach of trust and
dereliction of duty on the part of respondent bank’s officials
should be brought to the attention of respondent bank’s
Board of Directors and management for the appropriate
administrative action and other remedial action for the
bank to recover the damages it has been made to incur
thereby.
6. The Solicitor General has likewise questioned the
legality of respondent Court’s Order of October 14, 1968,
appointing respondent Garcia as “special sheriff” for the
purpose of effecting service of the writ of execution, simply
on respondent estate’s representation that it was desirable
“for a speedy enforcement of the writ.”
The Court finds this general practice of the lower courts
of appointing “special sheriffs” for the service of writs of
execution to be unauthorized by law. The duty of
“executing all processes” of the courts in civil cases,
particularly, writs of execution, devolves upon the sheriff or
his deputies, under Section 188 of the Revised
Administrative Code and Rule 89, section 8 of the Rules of
Court. Unlike the service of summons which may be made,
aside from the sheriff or other proper court officers, “for
special reasons by any person especially authorized by the
judge of the court issuing the summons” under Rule 14,
section 5 of the Rules of Court, the law requires that the
responsibility of serving writs of execution, which involve
the taking delivery of money or property in trust for the
judgment creditor, should be carried out by regularly
bonded sheriffs or other proper court officers, (Sections 183
and 330, Revised Administrative Code). The bond required
by law of the sheriff is conditioned inter alia, “for the
delivery or payment to the Government, or the persons
entitled thereto, of all the property or sums of money that
shall officially come into his or their (his deputies’) hands”
(Section 330, idem), and thus avoids
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632 SUPREME COURT REPORTS ANNOTATED


Commissioner of Public Highways vs. San Diego

the risk of embezzlement of such properties and moneys.


Section 185 of the Revised Administrative Code
restrictively authorizes the judge of the Court issuing the
process or writ to deputize some suitable person only “when
the sheriff is party to any action or proceeding or is
otherwise incompetent to serve process therein.” The only
other contingency provided by law is when the office of
sheriff is vacant, and the judge is then authorized, “in case
of emergency, (to) make a temporary appointment to the
office of sheriff xxx pending the appointment and
qualification of the sheriff in due course; and he may
appoint the deputy clerk of the court or other officer in the
government service to act in said capacity.” (Section 189,
idem).
None of the above contingencies having been shown to
be present, respondent Court’s order appointing respondent
Garcia as “special sheriff” to serve the writ of execution
was devoid of authority.
7. No civil liability attaches, however, to respondents
special sheriff and deputy clerk, since they acted strictly
pursuant to orders issued by respondent judge in the
discharge of her judicial functions as presiding judge of the
lower court, and respondent judge’s immunity from civil
responsibility covers them, although
20
the said orders are
herein declared null and void.
ACCORDINGLY, the writs of certiorari and prohibition
are granted. The respondent court’s questioned Orders of
October 14, and 18, 1968, are declared null and void, and
all further proceedings in Civil Case No. Q-7441 of the
Court of First Instance of Rizal, Quezon City, Branch IX
are abated. The writ of preliminary mandatory injunction
heretofore issued is made permanent, except as to
respondent judge who is excluded therefrom, without
prejudice

_______________

20 Alsua vs. Johnson, 21 Phil 308.

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Commissioner of Public Highways vs. San Diego

to any cause of action that private respondents may have,


inter se. Respondent estate and respondent Tomas N.
Hashim as prayed for by respondent Philippine National
Bank in its Answer, are ordered jointly and severally to
reimburse said respondent bank in the amount of
P209,076.00 with legal interest until the date of actual
reimbursement Respondents Estate of N. T. Hashim,
Philippine National Bank and Benjamin Coruña are
ordered jointly to pay treble costs.
The Clerk of Court is directed to furnish copies of this
decision to the Board of Directors and to the president of
respondent Philippine National Bank for their information
and appropriate action. So ordered.

       Concepcion, CJ., Reyes, J.B.L., Dizon, Makalintal,


Zaldivar, Sanchez, Castro, Fernando and Villamor. JJ.,
concur.
     Barredo, J., took no part.

Writs granted.

ANNOTATION EASEMENT

1. Meaning of “Formal Act”

1. Meaning of “Formal Act” in Article 538, Spanish Civil


Code.—The “Formal Act” required in Article 538 of the
Spanish Civil Code, by which the owner of the dominant
estate, in order to effectively establish a negative
easement, should forbid the owner of the servient estate to
perform any act which would be lawful without the
easement, refers to an instrument acknowledged before a
notary public. That this is the intendment of the law
although not expressed in exact language is the reason for
the clarification made in Article 621 of the new Civil Code,
which specifically requires the prohibition to be in “an
instrument acknowledged before a notary public.” Cid vs.
Javier, 108 Phil. 850.
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634 SUPREME COURT REPORTS ANNOTATED


Commissioner of Public Highways vs. San Diego

2. Right of Way

A personal servitude does not inure to the benefit of tht


successor-in-interest of the former owner of the dominant
estate.—Under the court order, the right of way granted
was expressly limited to the plaintiffs and their “family,
friends, drivers, servants and jeeps/’ The right acquired by
plaintiffs, therefore, was a personal servitude under Article
614 of the Civil Code and not a predial servitude that
inures to the benefit of whoever owns the dominant estate.
Hence, the refusal of the defendants to extend the said
easement to the plaintiffs’ successors-in-interest was not a
defiance of the court order, since they had no right
thereunder, Jabonete vs. Monteverde, 16 SCRA 462.
Preliminary injunction cannot be granted where the
conditions for granting the writ have not been established.
—The Central’s right to use the railway across the lands of
respondent subdivision expired with its milling contract,
i.e., on 30 September 1965. From that date the Central had
to rely strictly on its being entitled to a compulsory right of
way under the Civil Code, and it could not claim any such
Servitude without first establishing the pre-conditions for
its grant fixed by the said Code, namely, (1) that it Is
surrounded by other immovables and has no adequate
outlet to a public highway (Article 649, par. 1); (2) that
proper indemnity has been paid (Art 649, Par. I, end); (3)
that the isolation was not due to the Central’s own acts
(Art, 649, last par.); and (4) that the right of way claimed Is
“at the point least prejudicial to the servient estates; and
insofar as consistent with this rule, where the distance
from the dominant estate to a public highway may be the
shortest” (Art. 650). The burden of proof was on the Central
to show that all the foregoing statutory pre-conditions
exist, and having failed in this regard, the issuance of a
preliminary injunction became improvident and arbitrary,
for the first condition for the granting of the writ are “that
plaintiff is entitled to the relief demanded” (Sec. 3[a], Rule
58,
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VOL. 31, FEBRUARY 18, 1970 635


Commissioner of Public Highways vs. San Diego

Revised Rules of Court), and “that the complaint in the


action is verified, and shows facts entitling the plaintiff to
the relief demanded.” (Sec. 4[a], Rule 58). Bacolod-Murcia
Milting Co.9 Inc. vs. Capitol Subdivision, Inc., 17 SCRA
731.

3. Light and View

Effect of failure to have the easement annotated on the


certificate of title.—Granting that in the instant case an
easement of light and view was. acquired by prescription, it
was cut off or extinguished by the registration of the
servient estate under the Torrens System without the
easement being annotated on the corresponding certificate
of title, pursuant to Section 39 of the Land Registration
Act. Cid vs. Javier, 108 Phil. 850.
Two adjoining estates formerly owned by one person.—-
Where two adjoining estates were formerly owned by just
one person who introduced improvements on both such
that the wall of the house constructed in the first estate
extends to the wall of the camarin on the second estate:
and at the time of the sale of the f irst estate, there existed
on the aforementioned wall of the house, doors and
windows which serve 33 passages for light and view, there
being no provision in the deed of sale that the easement of
light and view will no* be established, the case is covered
by Article 624, New Civil Code, which provides that the
existence of an apparent sign of easement between two
estates established by the proprietor of both, shall be
considered, if one of them is alienated, as a title so that the
easement will continue actively and passively, unless at the
time the ownership of the estate is divided, the contrary is
stated in the deed of alienation of either of them, or the
sign is made to disappear before the instrument is
executed. The existence of the doors and windows on the
aforesaid wall of the house is equivalent to a title, for the
visible and permanent sign of an easement is the title that
characterizes its existence. But while the law declares that
the easement is to “continue”,

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636 SUPREME COURT REPORTS ANNOTATED


Commissioner of Public Highways vs. San Diego

the easement actually arises for the first time only upon
alienation of either estate, inasmuch as before that time
there is no easement to speak of, there being but one owner
of both estates, (Article 613, New Civil Code). Gargantos vs.
Tan Yanon, 108 Phil. 888.)

4. Extinguishment

How easements are extinguished.—Easements are


extinguished: (a) By non-user for ten years; with respect to
discontinuous easements, this period shall be computed
from the day on which they ceased to be used; and, with
respect to continuous easements, from the day on which an
act contrary to the same took place; and (b) When either or
both of the estates fall into such condition that the
easement cannot be used; but it shall revive if the
subsequent condition of the estates or either of them should
again permit its use, unless when the use becomes possible;
sufficient time for prescription has elapsed, in accordance
with the provisions of the preceding number, xxx (Art. 631,
Nos. 2 and 8, Civil Code.) Benedicto vs. Court of Appeals, 25
SCRA 145.
Where easement is perpetual in character.—The
easement in the case at bar is perpetual in character and
was annotated on all the transfer certificates of title issued
in the series of transfers from Hedrick through to the
respondent Heras, and in the transfer certificates of title
issued in the series of transfers from Recto through to the
petitioner Benedicto. Since there is no evidence that would
point a mutual agreement between any of the predecessors-
in-interest of the respondent nor between the petitioner,
and the respondent themselves with respect to the
discontinuance or obliteration of the easement annotated
on the titles, the continued existence of the easement must
be upheld and respected.
The fact that an easement by grant may have also
qualified as an easement of necessity does not detract from
its permanency as a property right, which survives the

637

VOL. 31, FEBRUARY 18, 1970 637


Sta. Maria vs. Lopez

termination of the necessity (Valicenti vs. Schultz, 209


N.Y.S. 2d. S3). Benedicto vs. Court of Appeals, 25 SCRA
145.—ATTY. JULIANA B. DE CASTRO.

Notes.—(a) Public property exempt from execution or


garnishment.—The following, being public property, may
not be executed or garnished: (1) property held by
municipal corporations for public use (such as municipal
fisheries and waters and the usufruct thereof) or which is
necessary for governmental purposes (Paoay vs. Manaois,
L-3485, June 30, 1950, 47 O.G. No. 12 Supp. 244); (2) the
salary due to a government employee before being paid to
him (Director of Commerce & Industry vs. Concepcion, 43
Phil. 384).
(b) Who may act as sheriff.—Local chiefs of police are
deputy sheriffs ex officio (De Borja vs. Borja, L-6622, July
81, 1957).

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