463 Phil. 903
CALLEJO, SR., J.:
Firstly, she issued a Summons to my wife, Flora A. Wabe dated November 15, 1999 when there was as yet no case filed against her, copy of Summons hereto attached as Annex "A", as the case was filed only on May 12, 2000.In her Comment, the respondent admitted the error in the issuance of the Writ of Execution[3] dated August 14, 2001, but was quick to point out that by reason of the Opposition filed by therein defendant Flora A. Wabe, the writ was recalled and a new one, September 24, 2001 was issued in its place. There was, however, no explanation with respect to the issuance of summons to complainant's wife notwithstanding the absence of a complaint for sum of money.
Secondly, when the judgment was rendered, copy attached as Annex "B", only the following sums were awarded Plaintiff:That in the Writ of Execution, however, Luisita P. Bionson added the following sums:
- P10,000.00 as actual damages;
- Interest of the above (6%) beginning December 30, 1998 (when this should correctly begin on May 12, 2000, the date of the filing of the case;
- P1,000.00 as litigation expenses plus cost.
- The legal rate of interest was to begin October 17, 1998 and increased to 10% in violation of the judgment and the law, as well.
- Exemplary damages P1,000.00 was added where none was awarded; and
- Attorney's fees of P1,000.00 was, likewise, added when none was awarded.[2]
Q - The Writ of Execution in "Paña v. Wabe" for which you are being charged here does not tally with the judgment. For example, the payment for the interest is 10 percent whereas in the judgment the interest is only 6 percent, can you explain that?Executive Judge Venadas, Sr., thereafter, submitted his Report and Recommendation dated September 22, 2003, and made the following findings:
A - I admit that mistake but that is without malice. The truth being that our court is only one sala and I am very busy so that when the stenographer presented that Writ of Execution to me, I signed it knowing that my stenographer can be trusted and [is] a[n] honest employee.[7]
Evidently and without any doubt whatsoever, the respondent issued the said summons (Exhibit "B") without any legal authority or basis as emphasized under Section 1 Rule 14 of the 1997 Rules of Civil Procedure, which allows only the issuance of a summons upon filing of a complaint and payment of the requisite legal fees. Hence, if no complaint is filed and no payment of the required fees is made, a Clerk of Court has no authority whatsoever to issue any summons and could be guilty of Grave Abuse of Authority under her "adjudicative support function to prepare and sign summons, subpoenas and notices and writs of execution in Civil Cases.For issuing summons to a party without a case being filed, and for including awards in the writ of execution not included in the decision or judgment of the court, the respondent clearly acted beyond the scope of her duties as a clerk of court....
What is to be noted further was that the respondent still went on to commit another serious violation which can never be justified by any amount of reasoning or logic for clearly it was against the very decision of the MTCC she was serving as Clerk of Court by issuing a Writ of Execution, duly signed by her as Clerk of Court, on August 15, 2001 (Exhibit "I") directing the Sheriff of Bukidnon to seize and attach properties of the defendant Flora Wabe for the satisfaction of the following:when the Judgment of the MTCC of Malaybalay was only for the following: "To pay actual damage of P10,000.00 and interest of 6% per annum of the collective amount computed from December 30, 1998, until the amount to be paid and to pay expenses of litigation of P1,000.00.
a) The sum of P10,000.00 with legal rate of interest from October 17, 1998, until date of payment of the rate of 10% per annum;b) Exemplary damages of P1,000.00 andc) Litigation expenses of P1,000.00 plusd) Attorney's fees of P1,000.00 together with legal fees
Clearly, the foregoing conduct and actuation of the respondent was in violation of her adjudicative support functions to prepare and sign summons and writs of execution as a Clerk of Court and her authority should always be and at all times in accordance with the dispositive portion of the decision of the Court she is serving as a Clerk of Court.[8]
By preponderance of evidence judgment is hereby rendered in favor of plaintiff ordering defendant to pay the following:On the other hand, the writ of execution issued and duly signed by the respondent in the same case reads, thus:SO ORDERED.[11]
- By way of actual damages Ten Thousand (P10,000.00) Pesos and;
- To pay interest of six (6%) percent per annum of the collectible amount computed from December 30, 1998 until the amount will be paid and to pay expenses of litigation of One Thousand (P1,000.00) pesos plus cost.
The respondent, thus, issued a writ of execution and included awards not contained in the judgment of the court. As we held in Equatorial Realty Development, Inc., v. Mayfair Theater, Inc.:[13]WRIT OF EXECUTION
We command you that of the goods and chattels of FLORA A. WABE you cause to be made the sum of Ten Thousand (P10,000.00) Pesos, Philippine Currency, together with the legal rate of interest thereon from the 17th day of October 1998, until the date of payment of the rate of ten (10%) percent per annum; and Exemplary damage of One Thousand (P1,000.00) pesos and litigation expenses of One Thousand P1,000.00) Pesos plus attorney's fees of One Thousand (P1,000.00) Pesos together with your lawful fees for service of this execution all in the money of the Philippines, which amount shall be recovered in our City Court on the 15th day of September 2001 against said defendant and that you tender the same to said plaintiff aside from your own fees on this execution and to likewise return this writ to this Court within sixty (60) days from the date of receipt hereof with your proceedings indorsed thereon.
But if sufficient personal property cannot be found whereof to satisfy this execution and lawful fees thereon, then you are commanded that of the lands and buildings of the said defendant you cause to be made the sum of money in the manner required by law and the Rules of Court and to make return of your proceedings with this writ within sixty (60) days from the date of receipt hereof.[12]
A writ of execution must conform to the judgment to be executed and adhere strictly to the very essential particulars. An order of execution, which varies the tenor of the judgment or exceeds the terms thereof is a nullity. The writ of execution may not vary the terms of the judgment sought to be executed. Where the execution is not in harmony with the judgment which gives life, and in fact exceeds it, has pro tanto no validity. To maintain otherwise would be to ignore the constitutional provision against depriving a person of his property without due process of law. ...[14]In issuing process, a clerk of court must adhere to the express directive of the court and refrain from exercising functions exclusively within the province of the judge to act upon. Before he or she can amend the writ, the court's order granting its issuance should first be amended.[15] By amending the writ on her own initiative, the respondent clearly usurped a judicial function.[16] The fact that the respondent admitted the error, and that a new writ was thereafter issued cannot exculpate her from the charges against her.