Guy, while driving a passenger jeepney owned and operated by Max, bumped Demy, a pedestrian crossing the street. Demy sustained injuries which required medical attendance for three months. Guy was charged with reckless imprudence resulting to physical injuries. Convicted by the Metropolitan Trial Court. Guy was sentenced to suffer a straight penalty of three months of arresto mayor and ordered to indemnify Demy in the sum of P5,000 and to pay P1,000 as attorney's fees.

Upon finality of the decision, a writ of execution was served upon Guy, but was returned unsatisfied due to his insolvency. Demy moved for a subsidiary writ of execution against Max. The latter opposed the motion on the ground that the decision made no mention of his subsidiary liability and that he was not impleaded in the case. How will you resolve the motion? (1998 BAR)