Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-21450 April 15, 1968
SERAFN T!AM, ET AL., plaintiffs-appellees,
vs.
MAG"ALENO S#ONG$ANO% &li&' GA(NO S#ONG$ANO% &)* LUCA #AGUO,
defendants,
MANLA SURET% AN" F"ELT% CO., NC. +CE#U #RANC$, bonding company and
defendant-appellant.
F. S. Urot and G. A. Uriate for plaintiffs-appellees.
Carlos J. Cuizon for defendants Gavino Sibonghanoy and Lucia aguio.
!illaluz La" #ffice$ !elasco La" #ffice$ %ages and Soberano for defendant-appellant
&anila Surety and Fidelity Co'pany$ (nc.
"-ON, J.:
n !uly "#, "#$% & ba'ely one month afte' the effectivity of Republic Act No. (#)
*no+n as the !udicia'y Act of "#$% & the spouses ,e'afin -i.am and /elicitas -agalog
commenced Civil Case No. R-))0 in the Cou't of /i'st 1nstance of Cebu against the
spouses Magdaleno ,ibonghanoy and 2ucia Baguio to 'ecove' f'om them the sum of
P",#0%.00, +ith legal inte'est the'eon f'om the date of the filing of the complaint until the
+hole obligation is paid, plus costs. As p'ayed fo' in the complaint, a +'it of attachment
+as issued by the cou't against defendants3 p'ope'ties, but the same +as soon
dissolved upon the filing of a counte'-bond by defendants and the Manila ,u'ety and
/idelity Co., 1nc. he'einafte' 'efe''ed to as the ,u'ety, on the 4"st of the same month.
Afte' being duly se'ved +ith summons the defendants filed thei' ans+e' in +hich, afte'
ma*ing some admissions and denials of the mate'ial ave'ments of the complaint, they
inte'posed a counte'claim. -his counte'claim +as ans+e'ed by the plaintiffs.
Afte' t'ial upon the issues thus .oined, the Cou't 'ende'ed .udgment in favo' of the
plaintiffs and, afte' the same had become final and e5ecuto'y, upon motion of the latte',
the Cou't issued a +'it of e5ecution against the defendants. -he +'it having been
'etu'ned unsatisfied, the plaintiffs moved fo' the issuance of a +'it of e5ecution against
the ,u'ety3s bond 6Rec. on Appeal, pp. $)-$#7, against +hich the ,u'ety filed a +'itten
opposition 6(d. pp. $#7 upon t+o g'ounds, namely, 6"7 /ailu'e to p'osecute and 6(7
Absence of a demand upon the ,u'ety fo' the payment of the amount due unde' the
.udgment. 8pon these g'ounds the ,u'ety p'ayed the Cou't not only to deny the motion
fo' e5ecution against its counte'-bond but also the follo+ing affir'ative relief 9 :to 'elieve
the he'ein bonding company of its liability, if any, unde' the bond in ;uestion: 6(d. p. <$7
-he Cou't denied this motion on the g'ound solely that no p'evious demand had been
made on the ,u'ety fo' the satisfaction of the .udgment. -he'eafte' the necessa'y
demand +as made, and upon failu'e of the ,u'ety to satisfy the .udgment, the plaintiffs
filed a second motion fo' e5ecution against the counte'bond. n the date set fo' the
hea'ing the'eon, the Cou't, upon motion of the ,u'ety3s counsel, g'anted the latte' a
pe'iod of five days +ithin +hich to ans+e' the motion. 8pon its failu'e to file such
ans+e', the Cou't g'anted the motion fo' e5ecution and the co''esponding +'it +as
issued.
,ubse;uently, the ,u'ety moved to ;uash the +'it on the g'ound that the same +as
issued +ithout the 'e;ui'ed summa'y hea'ing p'ovided fo' in ,ection "= of Rule <# of
the Rules of Cou't. As the Cou't denied the motion, the ,u'ety appealed to the Cou't of
Appeals f'om such o'de' of denial and f'om the one denying its motion fo'
'econside'ation 6(d. p. #=7. 1ts 'eco'd on appeal +as then p'inted as 'e;ui'ed by the
Rules, and in due time it filed its b'ief 'aising the'ein no othe' ;uestion but the ones
cove'ed by the follo+ing assignment of e''o's9
1. -hat the >ono'able Cou't a )uo e''ed in issuing its o'de' dated Novembe' (,
"#<=, by holding the incident as submitted fo' 'esolution, +ithout a summa'y
hea'ing and compliance +ith the othe' mandato'y 'e;ui'ements p'ovided fo' in
,ection "=, Rule <# of the Rules of Cou't.
11. -hat the >ono'able Cou't a )uo e''ed in o'de'ing the issuance of e5ecution
against the he'ein bonding company-appellant.
111. -hat the >ono'able Cou't a )uo e''ed in denying the motion to ;uash the +'it
of e5ecution filed by the he'ein bonding company-appellant as +ell as its
subse;uent motion fo' 'econside'ation, and?o' in not ;uashing o' setting aside
the +'it of e5ecution.
Not one of the assignment of e''o's & it is obvious & 'aises the ;uestion of lac* of
.u'isdiction, neithe' di'ectly no' indi'ectly.
Although the appellees failed to file thei' b'ief, the Cou't of Appeals, on @ecembe' "",
"#)(, decided the case affi'ming the o'de's appealed f'om.
n !anua'y %, "#)4 & five days afte' the ,u'ety 'eceived notice of the decision, it filed
a motion as*ing fo' e5tension of time +ithin +hich to file a motion fo' 'econside'ation.
-he Cou't of Appeals g'anted the motion in its 'esolution of !anua'y "0 of the same
yea'. -+o days late' the ,u'ety filed a pleading entitled M-1N - @1,M1,,, alleging
substantially that appellees action +as filed in the Cou't of /i'st 1nstance of Cebu on
!uly "#, "#$% fo' the 'ecove'y of the sum of P",#0%.00 onlyA that a month befo'e that
date Republic Act No. (#), othe'+ise *no+n as the !udicia'y Act of "#$%, had al'eady
become effective, ,ection %% of +hich placed +ithin the o'iginal e5clusive .u'isdiction of
infe'io' cou'ts all civil actions +he'e the value of the sub.ect-matte' o' the amount of the
demand does not e5ceed P(,000.00, e5clusive of inte'est and costsA that the Cou't of
/i'st 1nstance the'efo'e had no .u'isdiction to t'y and decide the case. 8pon these
p'emises the ,u'ety3s motion p'ayed the Cou't of Appeals to set aside its decision and
to dismiss the case. By 'esolution of !anua'y "), "#)4 the Cou't of Appeals 'e;ui'ed the
appellees to ans+e' the motion to dismiss, but they failed to do so. Bhe'eupon, on May
(0 of the same yea', the Cou't 'esolved to set aside its decision and to ce'tify the case
to 8s. -he pe'tinent po'tions of its 'esolution 'ead as follo+s9
1t +ould indeed appea' f'om the 'eco'd that the action at ba', +hich is a suit fo'
collection of money in the sum of e5actly P",#0%.00 e5clusive of inte'est, +as
o'iginally instituted in the Cou't of /i'st 1nstance of Cebu on !uly "#, "#$%. But
about a month p'io' to the filing of the complaint, mo'e specifically on !une "=,
"#$%, the !udicia'y Act of "#$% too* effect, dep'iving the Cou't of /i'st 1nstance
of o'iginal .u'isdiction ove' cases in +hich the demand, e5clusive of inte'est, is
not mo'e than P(,000.00. 6,ecs. $$CcD and %)CbD, R.A. No. (#).7
Be believe, the'efo'e, that the point 'aised in appellant3s motion is an impo'tant
one +hich me'its se'ious conside'ation. As stated, the complaint +as filed on
!uly "#, "#$%. -his case the'efo'e has been pending no+ fo' almost "< yea's,
and th'oughout the enti'e p'oceeding appellant neve' 'aised the ;uestion of
.u'isdiction until afte' 'eceipt of this Cou't3s adve'se decision.
-he'e a'e th'ee cases decided by the >ono'able ,up'eme Cou't +hich may be
+o'thy of conside'ation in connection +ith this case, namely9 -yson -an, et al. vs.
/ilipinas CompaEia de ,egu'os, et al., F.R. No. 2-"00#), Ma'ch (4, "#<)A
Pindangan Ag'icultu'al Co., 1nc. vs. !ose P. @ans, etc., et al., F.R. No. 2-"$<#",
,eptembe' (), "#)(A and Alf'edo Montelibano, et al. vs. Bacolod-Mu'cia Milling
Co., 1nc., F.R. No. 2-"<0#(, ,eptembe' (#, "#)(, +he'ein the >ono'able
,up'eme Cou't f'o+ned upon the 3undesi'able p'actice3 of appellants submitting
thei' case fo' decision and then accepting the .udgment, if favo'able, but
attac*ing it fo' lac* of .u'isdiction +hen adve'se.
Conside'ing, ho+eve', that the ,up'eme Cou't has the :e5clusive: appellate
.u'isdiction ove' :all cases in +hich the .u'isdiction of any infe'io' cou't is in issue:
6,ee. ", Pa'. 4C4D, !udicia'y Act of "#$%, as amended7, +e have no choice but to
ce'tify, as +e he'eby do ce'tify, this case to the ,up'eme Cou't.*+"ph,*.-.t
ACCR@1NF2G, pu'suant to ,ection 4" of the !udicia'y Act of "#$% as
amended, let the 'eco'd of this case be fo'+a'ded to the ,up'eme Cou't.
1t is an undisputed fact that the action commenced by appellees in the Cou't of /i'st
1nstance of Cebu against the ,ibonghanoy spouses +as fo' the 'ecove'y of the sum of
P",#0%.00 only & an amount +ithin the o'iginal e5clusive .u'isdiction of infe'io' cou'ts in
acco'dance +ith the p'ovisions of the !udicia'y Act of "#$% +hich had ta*en effect about
a month p'io' to the date +hen the action +as commenced. -'ue also is the 'ule that
.u'isdiction ove' the sub.ect matte' is confe''ed upon the cou'ts e5clusively by la+, and
as the lac* of it affects the ve'y autho'ity of the cou't to ta*e cogniHance of the case, the
ob.ection may be 'aised at any stage of the p'oceedings. >o+eve', conside'ing the facts
and ci'cumstances of the p'esent case & +hich shall fo'th+ith be set fo'th & Be a'e of
the opinion that the ,u'ety is no+ ba''ed by laches f'om invo*ing this plea at this late
hou' fo' the pu'pose of annuling eve'ything done he'etofo'e in the case +ith its active
pa'ticipation.
As al'eady stated, the action +as commenced in the Cou't of /i'st 1nstance of Cebu on
!uly "#, "#$%, that is, almost fifteen years before the ,u'ety filed its motion to dismiss
on !anua'y "(, "#)4 'aising the ;uestion of lac* of .u'isdiction for the first ti'e.
1t must be 'emembe'ed that although the action, o'iginally, +as e5clusively against the
,ibonghanoy spouses the ,u'ety became a ;uasi-pa'ty the'ein since !uly 4", "#$%
+hen it filed a counte'-bond fo' the dissolution of the +'it of attachment issued by the
cou't of o'igin 6Reco'd on Appeal, pp. "<-"#7. ,ince then, it ac;ui'ed ce'tain 'ights and
assumed specific obligations in connection +ith the pending case, in acco'dance +ith
sections "( and "=, Rule <=, Rules of Cou't 6Bautista vs. !oa;uin, $) Phil. %%<A
Iimpang J Co. vs. !avie', )< Phil. "=07.
8pon the filing of the fi'st motion fo' e5ecution against the counte'-bond the ,u'ety not
only filed a +'itten opposition the'eto p'aying fo' its denial but also as*ed fo' an
additional affir'ative relief & that it be 'elieved of its liability unde' the counte'-bond
upon the g'ounds 'elied upon in suppo't of its opposition & lac* of .u'isdiction of the
cou't a )uo not being one of them.
-hen, at the hea'ing on the second motion fo' e5ecution against the counte'-bond, the
,u'ety appea'ed, th'ough counsel, to as* fo' time +ithin +hich to file an ans+e' o'
opposition the'eto. -his motion +as g'anted, but instead of such ans+e' o' opposition,
the ,u'ety filed the motion to dismiss mentioned he'etofo'e.
A pa'ty may be estopped o' ba''ed f'om 'aising a ;uestion in diffe'ent +ays and fo'
diffe'ent 'easons. -hus +e spea* of estoppel in pais, o' estoppel by deed o' by 'eco'd,
and of estoppel by laches.
2aches, in a gene'al sense is failu'e o' neglect, fo' an un'easonable and une5plained
length of time, to do that +hich, by e5e'cising due diligence, could o' should have been
done ea'lie'A it is negligence o' omission to asse't a 'ight +ithin a 'easonable time,
+a''anting a p'esumption that the pa'ty entitled to asse't it eithe' has abandoned it o'
declined to asse't it.
-he doct'ine of laches o' of :stale demands: is based upon g'ounds of public policy
+hich 'e;ui'es, fo' the peace of society, the discou'agement of stale claims and, unli*e
the statute of limitations, is not a me'e ;uestion of time but is p'incipally a ;uestion of
the ine;uity o' unfai'ness of pe'mitting a 'ight o' claim to be enfo'ced o' asse'ted.
1t has been held that a pa'ty can not invo*e the .u'isdiction of a cou't to su'e affi'mative
'elief against his opponent and, afte' obtaining o' failing to obtain such 'elief, 'epudiate
o' ;uestion that same .u'isdiction 6@ean vs. @ean, "4) '. )#$, %) A.2.R. =#7. 1n the
case .ust cited, by +ay of e5plaining the 'ule, it +as fu'the' said that the ;uestion
+hethe' the cou't had .u'isdiction eithe' of the sub.ect-matte' of the action o' of the
pa'ties +as not impo'tant in such cases because the pa'ty is ba''ed f'om such conduct
not because the /udg'ent or order of the court is valid and conclusive as an
ad/udication$ but for the reason that such a practice can not be tolerated & obviously fo'
'easons of public policy.
/u'the'mo'e, it has also been held that afte' volunta'ily submitting a cause and
encounte'ing an adve'se decision on the me'its, it is too late fo' the lose' to ;uestion
the .u'isdiction o' po+e' of the cou't 6Pease vs. Rathbun-!ones etc., ($4 8.,. (=4, )" 2.
Ed. ="<, 4= ,. Ct. (%4A ,t. 2ouis etc. vs. McB'ide, "$" 8.,. "(=, 4< 2. Ed. )<#7. And in
2ittleton vs. Bu'gess, ") Byo. <%, the Cou't said that it is not 'ight fo' a pa'ty +ho has
affi'med and invo*ed the .u'isdiction of a cou't in a pa'ticula' matte' to secu'e an
affi'mative 'elief, to afte'+a'ds deny that same .u'isdiction to escape a penalty.
8pon this same p'inciple is +hat Be said in the th'ee cases mentioned in the 'esolution
of the Cou't of Appeals of May (0, "#)4 6supra7 & to the effect that +e f'o+n upon the
:undesi'able p'actice: of a pa'ty submitting his case fo' decision and then accepting the
.udgment, only if favo'able, and attac*ing it fo' lac* of .u'isdiction, +hen adve'se & as
+ell as in %inda-gan etc. vs. 0ans$ et al., F.R. 2-"$<#", ,eptembe' (), "#)(A
&ontelibano$ et al.$ vs. acolod-&urcia &illing Co.$ (nc., F.R. 2-"<0#(A 1oung &en
Labor Union etc. vs. 2he Court of (ndustrial 3elation et al., F.R. 2-(040=, /eb. (),
"#)<, and &e/ia vs. Lucas, "00 Phil. p. (==.
-he facts of this case sho+ that f'om the time the ,u'ety became a ;uasi-pa'ty on !uly
4", "#$%, it could have 'aised the ;uestion of the lac* of .u'isdiction of the Cou't of /i'st
1nstance of Cebu to ta*e cogniHance of the p'esent action by 'eason of the sum of
money involved +hich, acco'ding to the la+ then in fo'ce, +as +ithin the o'iginal
e5clusive .u'isdiction of infe'io' cou'ts. 1t failed to do so. 1nstead, at seve'al stages of the
p'oceedings in the cou't a )uo as +ell as in the Cou't of Appeals, it invo*ed the
.u'isdiction of said cou'ts to obtain affi'mative 'elief and submitted its case fo' a final
ad.udication on the me'its. 1t +as only afte' an adve'se decision +as 'ende'ed by the
Cou't of Appeals that it finally +o*e up to 'aise the ;uestion of .u'isdiction. Be'e +e to
sanction such conduct on its pa't, Be +ould in effect be decla'ing as useless all the
p'oceedings had in the p'esent case since it +as commenced on !uly "#, "#$% and
compel the .udgment c'edito's to go up thei' Calva'y once mo'e. -he ine;uity and
unfai'ness of this is not only patent but 'evolting.
Coming no+ to the me'its of the appeal9 afte' going ove' the enti'e 'eco'd, Be have
become pe'suaded that Be can do nothing bette' than to ;uote in toto, +ith app'oval,
the decision 'ende'ed by the Cou't of Appeals on @ecembe' "", "#)( as follo+s9
1n Civil Case No. R-))0 of the Cou't of /i'st 1nstance of Cebu, +hich +as a suit
fo' collection of a sum of money, a +'it of attachment +as issued against
defendants3 p'ope'ties. -he attachment, ho+eve', +as subse;uently discha'ged
unde' ,ection "( of Rule <# upon the filing by defendants of a bond subsc'ibed
by Manila ,u'ety J /idelity Co., 1nc.
Afte' t'ial, .udgment +as 'ende'ed in favo' of plaintiffs.
-he +'it of e5ecution against defendants having been 'etu'ned totally unsatisfied,
plaintiffs moved, unde' ,ection "= of Rule <#, fo' issuance of +'it of e5ecution
against Manila ,u'ety J /idelity Co., 1nc. to enfo'ce the obligation of the bond.
But the motion +as, upon the su'ety3s opposition, denied on the g'ound that the'e
+as :no sho+ing that a demand had been made, by the plaintiffs to the bonding
company fo' payment of the amount due unde' the .udgment: 6Reco'd on
Appeal, p. )07.
>ence, plaintiffs made the necessa'y demand upon the su'ety fo' satisfaction of
the .udgment, and upon the latte'3s failu'e to pay the amount due, plaintiffs again
filed a motion dated ctobe' 4", "#<=, fo' issuance of +'it of e5ecution against
the su'ety, +ith notice of hea'ing on Novembe' (, "#<=. n ctobe' 4", "#<=,
the su'ety 'eceived copy of said motion and notice of hea'ing.
1t appea's that +hen the motion +as called on Novembe' (, "#<=, the su'ety3s
counsel as*ed that he be given time +ithin +hich to ans+e' the motion, and so
an o'de' +as issued in open cou't, as follo+s9*+"ph,*.-.t
As prayed for, Atty. !ose P. ,obe'ano, !'., counsel fo' the Manila ,u'ety J
/idelity Co., 1nc., Cebu B'anch, is given until 4ednesday$ 5ove'ber ),
"#<=, to file his ans"er to the motion fo' the issuance of a +'it of
e5ecution dated ctobe' 40, "#<= of the plaintiffs, after "hich this incident
shall be dee'ed sub'itted for resolution.
, R@ERE@.
Fiven in open cou't, this (nd day of Novembe', "#<=, at Cebu City,
Philippines.
6,gd.7 !,E M. MEN@KA
!udge
6Reco'd on Appeal, pp.
)$-)<, emphasis ou's7
,ince the su'ety3s counsel failed to file any ans+e' o' ob.ection +ithin the pe'iod
given him, the cou't, on @ecembe' =, "#<=, issued an o'de' g'anting plaintiffs3
motion fo' e5ecution against the su'etyA and on @ecembe' "(, "#<=, the
co''esponding +'it of e5ecution +as issued.
n @ecembe' ($, "#<=, the su'ety filed a motion to ;uash the +'it of e5ecution
on the g'ound that the same +as :issued +ithout the 'e;ui'ements of ,ection "=,
Rule <# of the Rules of Cou't having been complied +ith,: mo'e specifically, that
the same +as issued +ithout the 'e;ui'ed :summa'y hea'ing:. -his motion +as
denied by o'de' of /eb'ua'y "0, "#<%.
n /eb'ua'y (<, "#<%, the su'ety filed a motion fo' 'econside'ation of the above-
stated o'de' of denialA +hich motion +as li*e+ise denied by o'de' of Ma'ch (),
"#<%.
/'om the above-stated o'de's of /eb'ua'y "0, "#<% and Ma'ch (), "#<% &
denying the su'ety3s motion to ;uash the +'it of e5ecution and motion fo'
'econside'ation, 'espectively & the su'ety has inte'posed the appeal on hand.
-he su'ety insists that the lo+e' cou't should have g'anted its motion to ;uash
the +'it of e5ecution because the same +as issued +ithout the summa'y hea'ing
'e;ui'ed by ,ection "= of Rule <#, +hich 'eadsA
:,ec. "=. 4hen e6ecution returned unsatisfied$ recovery had upon bond.
& 1f the e5ecution be 'etu'ned unsatisfied in +hole o' in pa't, the su'ety o'
su'eties on any bond given pu'suant to the p'ovisions of this 'ole to secu'e
the payment of the .udgment shall become finally cha'ged on such bond,
and bound to pay to the plaintiff upon demand the amount due unde' the
.udgment, +hich amount may be 'ecove'ed f'om such su'ety o' su'eties
afte' notice and su''ary hearing in the sa'e action.: 6Emphasis ou's7
,umma'y hea'ing is :not intended to be ca''ied on in the fo'mal manne' in +hich
o'dina'y actions a'e p'osecuted: 6%4 C.!.,. =#(7. 1t is, 'athe', a p'ocedu'e by
+hich a ;uestion is 'esolved :+ith dispatch, +ith the least possible delay, and in
p'efe'ence to o'dina'y legal and 'egula' .udicial p'oceedings: 6(bid, p. =#07. Bhat
is essential is that :the defendant is notified o' summoned to appea' and is given
an oppo'tunity to hea' +hat is u'ged upon him, and to inte'pose a defense, afte'
+hich follo+s an ad.udication of the 'ights of the pa'ties: 6(bid., pp. =#4-=#$7A and
as to the e5tent and latitude of the hea'ing, the same +ill natu'ally lie upon the
disc'etion of the cou't, depending upon the attending ci'cumstances and the
natu'e of the incident up fo' conside'ation.
1n the case at ba', the su'ety had been notified of the plaintiffs3 motion fo'
e5ecution and of the date +hen the same +ould be submitted fo' conside'ation.
1n fact, the su'ety3s counsel +as p'esent in cou't +hen the motion +as called,
and it +as upon his 'e;uest that the cou't a )uo gave him a pe'iod of fou' days
+ithin +hich to file an ans+e'. Get he allo+ed that pe'iod to lapse +ithout filing an
ans+e' o' ob.ection. -he su'ety cannot no+, the'efo'e, complain that it +as
dep'ived of its day in cou't.
1t is a'gued that the su'ety3s counsel did not file an ans+e' to the motion :fo' the
simple 'eason that all its defenses can be set up du'ing the hea'ing of the motion
even if the same a'e not 'educed to +'iting: 6Appellant3s b'ief, p. $7. -he'e is
obviously no me'it in this p'etense because, as stated above, the 'eco'd +ill
sho+ that +hen the motion +as called, +hat the su'ety3s counsel did +as to as*
that he be allo+ed and given time to file an ans+e'. Mo'eove', it +as stated in the
o'de' given in open cou't upon 'e;uest of the su'ety3s counsel that afte' the fou'-
day pe'iod +ithin +hich to file an ans+e', :the incident shall be deemed
submitted fo' 'esolution:A and counsel appa'ently ag'eed, as the o'de' +as
issued upon his instance and he inte'posed no ob.ection the'eto.
1t is also u'ged that although acco'ding to ,ection "= of Rule <#, supra, the'e is
no need fo' a sepa'ate action, the'e must, ho+eve', be a sepa'ate .udgment
against the su'ety in o'de' to hold it liable on the bond 6Appellant3s B'ief, p. "<7.
Not so, in ou' opinion. A bond filed fo' discha'ge of attachment is, pe' ,ection "(
of Rule <#, :to secu'e the payment to the plaintiff of any .udgment he may
'ecove' in the action,: and stands :in place of the property so released:. >ence,
afte' the .udgment fo' the plaintiff has become e5ecuto'y and the e5ecution is
:'etu'ned unsatisfied: 6,ec. "=, Rule <#7, as in this case, the liability of the bond
automatically attaches and, in failu'e of the su'ety to satisfy the .udgment against
the defendant despite demand the'efo', +'it of e5ecution may issue against the
su'ety to enfo'ce the obligation of the bond.
8PN A22 ->E /REF1NF, the o'de's appealed f'om a'e he'eby affi'med, +ith
costs against the appellant Manila ,u'ety and /idelity Company, 1nc.