Professional Documents
Culture Documents
L-252 March 30, 1946 injustice, damages and irreparable injury to their
great prejudice..
TRANQUILINO CALO and DOROTEO SAN
JOSE, petitioners, 6. That the plaintiffs are offering a bond in their
vs. application for ex-parte injunction in the amount
ARSENIO C. ROLDAN, Judge of First Instance of of P2,000, subject to the approval of this Hon.
Laguna, REGINO RELOVA and TEODULA Court, which bond is attached hereto marked as
BARTOLOME, respondents. Annex A and made an integral part of this
complaint..
Zosimo D. Tanalega for petitioners.
Estanislao A. Fernandez for respondents Relova and 7. That on or about June 26, 1945, the
Bartolome. defendants, through force, destroyed and took
No appearance for respondent Judge. away the madre-cacao fencer, and barbed wires
built on the northwestern portion of the land
FERIA, J.: designated as parcel No. (b) of this complaint to
the damage and prejudice of the plaintiffs in the
amount of at least P200..
This is a petition for writ of certiorari against the
respondent Judge Arsenio C. Roldan of the Court First
Instance of Laguna, on the ground that the latter has Wherefore, it is respectfully prayed:.
exceeded his jurisdiction or acted with grave abuse of
discretion in appointing a receiver of certain lands and their (a) That the accompanying bond in the amount of
fruits which, according to the complainant filed by the P2,000 be approved;
other respondents, as plaintiffs, against petitioners, as
defendants, in case No. 7951, were in the actual possession (b) That a writ of preliminary injunction be
of and belong to said plaintiffs. issued ex-parte immediately restraining,
enjoining and prohibiting the defendants, their
The complaint filed by plaintiffs and respondents against agents, servants, representatives, attorneys, and,
defendants and petitioners in the Court of First Instance of (or) other persons acting for and in their behalf,
Laguna reads as follows: from entering in, interfering with and/or in any
wise taking any participation in the harvest of the
1. That the plaintiffs and the defendants are all of lands belonging to the plaintiffs; or in any wise
legal age, Filipino citizens, and residents of Pila, working the lands above-described;
Laguna; the plaintiffs are husband and wife..
(c) That judgment be rendered, after due hearing,
2. That the plaintiff spouses are the owners and declaring the preliminary injunction final;.
the possessors of the following described parcels
of land, to wit:. (d) That the defendants be condemned jointly and
severally to pay the plaintiffs the sum of P200 as
xxx xxx xxx damages; and.
3. That parcel No. (a) described above is now an (e) That plaintiffs be given such other and further
unplanted rice land and parcel No. (b) described relief just and equitable with costs of suit to the
in the complaint is a coconut land, both under the defendants.
possession of the plaintiffs..
The defendants filed an opposition dated August 8, 1945, to
4. That the defendants, without any legal right the issuance of the writ of preliminary injunction prayed for
whatsoever and in connivance with each other, in the above-quoted complaint, on the ground that they are
through the use of force, stealth, threats and owners of the lands and have been in actual possession
intimidation, intend or are intending to enter and thereof since the year 1925; and their answer to the
work or harvest whatever existing fruits may now complaint filed on August 14, 1945, they reiterate that they
be found in the lands above-mentioned in are the owners and were then in actual possession of said
violation of plaintiff's in this case ineffectual.. property, and that the plaintiffs have never been in
possession thereof.
5. That unless defendants are barred, restrained,
enjoined, and prohibited from entering or The hearing of the petition for preliminary injunction was
harvesting the lands or working therein through held on August 9, 1945, at which evidence was introduced
ex-parte injunction, the plaintiffs will suffer by both parties. After the hearing, Judge Rilloraza, then
presiding over the Court of First Instance of Laguna, denied
the petition on the ground that the defendants were in actual
possession of said lands. A motion for reconsideration was persons acting for or in their behalf, be restrained, enjoined
filed by plaintiffs on August 20, 1945, but said motion had and prohibited from entering in, interfering with, or in any
not yet, up to the hearing of the present case, been decided way taking any participation in the harvest of the lands
either by Judge Rilloraza, who was assigned to another above describe belonging to the plaintiffs."
court, or by the respondent judge.
That this is the nature of plaintiffs' action corroborated by
The plaintiffs (respondents) filed on September 4, 1945, a the fact that they petitioned in the same complaint for a
reply to defendants' answer in which, among others, they preliminary prohibitory injunction, which was denied by
reiterate their allegation in the complaint that they are the court in its order dated August 17, 1945, and that the
possessors in good faith of the properties in question. plaintiffs, in their motion for reconsideration of said order
filed on August 20 of the same year, and in their urgent
And on December 17, plaintiffs filed an urgent petition ex- petition dated December 17, moving the court to grant said
parte praying that plaintiffs' motion for reconsideration of motion for reconsideration, reiterated that they were actual
the order denying their petition for preliminary injunction possessors of the land in question.
be granted and or for the appointment of a receiver of the
properties described in the complaint, on the ground that (a) The fact that plaintiffs, in their reply dated September 4,
the plaintiffs have an interest in the properties in question, after reiterating their allegation or claim that they are the
and the fruits thereof were in danger of being lost unless a owners in fee simple and possessors in good faith of the
receiver was appointed; and that (b) the appointment of a properties in question, pray that they be declared the
receiver was the most convenient and feasible means of owners in fee simple, has not changed the nature of the
preserving, administering and or disposing of the properties action alleged in the complaint or added a new cause of
in litigation which included their fruits. Respondents Judge action thereto; because the allegations in plaintiffs' reply
Roldan, on the same date, December 17, 1945, decided that were in answer to defendants' defenses, and the nature of
the court would consider the motion for reconsideration in plaintiffs' cause of action, as set forth in their complaint,
due time, and granted the petition for appointment of and was not and could not be amended or changed by the reply,
appointed a receiver in the case. which plaintiffs had the right to present as a matter of
course. A plaintiff can not, after defendant's answer, amend
The question to be determined in the present special civil his complaint by changing the cause of action or adding a
action of certiorari is, whether or not the respondent judge new one without previously obtaining leave of court
acted in excess of his jurisdiction or with grave abuse of (section 2, Rule 17)..
discretion in issuing the order appointing a receiver in the
case No. 7951 of the Court of First Instance of Laguna; for Respondents' contention in paragraph I of their answer that
it is evident that there is no appeal or any other plain, the action filed by them against petitioners in the case No.
speedy, and adequate remedy in the ordinary course of the 7951 of the Court of First Instance of Laguna is not only
law against the said order, which is an incidental or for injunction, but also to quiet title over the two parcels of
interlocutory one. land described in the complaint, is untenable for the reasons
stated in the previous paragraph. Besides, an equitable
It is a truism in legal procedure that what determines the action to quiet title, in order to prevent harrassment by
nature of an action filed in the courts are the facts alleged in continued assertion of adverse title, or to protect the
the complaint as constituting the cause of the action. The plaintiff's legal title and possession, may be filed in courts
facts averred as a defense in the defendant's answer do not of equity (and our courts are also of equity), only where no
and can not determine or change the nature of the plaintiff's other remedy at law exists or where the legal remedy
action. The theory adopted by the plaintiff in his complaint invokable would not afford adequate remedy (32 Cyc.,
is one thing, and that of the defendant in his answer is 1306, 1307). In the present case wherein plaintiffs alleged
another. The plaintiff has to establish or prove his theory or that they are the owners and were in actual possession of
cause of action in order to obtain the remedy he prays for; the lands described in the complaint and their fruits, the
and the defendant his theory, if necessary, in order to defeat action of injunction filed by them is the proper and
the claim or action of the plaintiff.. adequate remedy in law, for a judgment in favor of
plaintiffs would quiet their title to said lands..
According to the complaint filed in the said case No. 7951,
the plaintiff's action is one of ordinary injunction, for the The provisional remedies denominated attachment,
plaintiffs allege that they are the owners of the lands therein preliminary injunction, receivership, and delivery of
described, and were in actual possession thereof, and that personal property, provided in Rules 59, 60, 61, and 62 of
"the defendants without any legal right whatever and in the Rules of Court, respectively, are remedies to which
connivance with each other, through the use of force, parties litigant may resort for the preservation or protection
stealth, threat and intimidation, intend or are intending to of their rights or interest, and for no other purpose, during
enter and work or harvest whatever existing fruits may be the pendency of the principal action. If an action, by its
found in the lands above mentioned in violation of nature, does not require such protection or preservation,
plaintiffs' proprietary rights thereto;" and prays "that the said remedies can not be applied for and granted. To each
defendants, their agents, servants, representatives, and other kind of action or actions a proper provisional remedy is
provided for by law. The Rules of Court clearly specify the the defendant from damaging, destroying or disposing of
case in which they may be properly granted. . the same during the pendency of the suit.
Attachment may be issued only in the case or actions Undoubtedly, according to law, the provisional remedy
specifically stated in section 1, Rule 59, in order that the proper to plaintiffs' action of injunction is a preliminary
defendant may not dispose of his property attached, and prohibitory injunction, if plaintiff's theory, as set forth in
thus secure the satisfaction of any judgment that may be the complaint, that he is the owner and in actual possession
recovered by plaintiff from defendant. For that reason a of the premises is correct. But as the lower court found at
property subject of litigation between the parties, or the hearing of the said petition for preliminary injunction
claimed by plaintiff as his, can not be attached upon motion that the defendants were in possession of the lands, the
of the same plaintiff.. lower court acted in accordance with law in denying the
petition, although their motion for reconsideration, which
The special remedy of preliminary prohibitory injunction was still pending at the time the petition in the present case
lies when the plaintiff's principal action is an ordinary was heard in this court, plaintiffs insist that they are in
action of injunction, that is, when the relief demanded in actual possession of the lands and, therefore, of the fruits
the plaintiff's complaint consists in restraining the thereof.
commission or continuance of the act complained of, either
perpetually or for a limited period, and the other conditions From the foregoing it appears evident that the respondent
required by section 3 of Rule 60 are present. The purpose judge acted in excess of his jurisdiction in appointing a
of this provisional remedy is to preserve the status quo of receiver in case No. 7951 of the Court of First Instance of
the things subject of the action or the relation between the Laguna. Appointment of a receiver is not proper or does
parties, in order to protect the rights of the plaintiff not lie in an action of injunction such as the one filed by the
respecting the subject of the action during the pendency of plaintiff. The petition for appointment of a receiver filed by
the suit. Because, otherwise or if no preliminary prohibition the plaintiffs (Exhibit I of the petition) is based on the
injunction were issued, the defendant may, before final ground that it is the most convenient and feasible means of
judgment, do or continue the doing of the act which the preserving, administering and disposing of the properties in
plaintiff asks the court to restrain, and thus make litigation; and according to plaintiffs' theory or allegations
ineffectual the final judgment rendered afterwards granting in their complaint, neither the lands nor the palay harvested
the relief sought by the plaintiff. But, as this court has therein, are in litigation. The litigation or issue raised by
repeatedly held, a writ of preliminary injunction should not plaintiffs in their complaint is not the ownership or
be granted to take the property out of the possession of one possession of the lands and their fruits. It is whether or not
party to place it in the hands of another whose title has not defendants intend or were intending to enter or work or
been clearly established.. harvest whatever existing fruits could then be found in the
lands described in the complaint, alleged to be the
A receiver may be appointed to take charge of personal or exclusive property and in the actual possession of the
real property which is the subject of an ordinary civil plaintiffs. It is a matter not only of law but of plain
action, when it appears that the party applying for the common sense that a plaintiff will not and legally can not
appointment of a receiver has an interest in the property or ask for the appointment or receiver of property which he
fund which is the subject of the action or litigation, and that alleges to belong to him and to be actually in his
such property or fund is in danger of being lost, removed or possession. For the owner and possessor of a property is
materially injured unless a receiver is appointed to guard more interested than persons in preserving and
and preserve it (section 1 [b], Rule 61); or when it appears administering it.
that the appointment of a receiver is the most convenient
and feasible means of preserving, administering or Besides, even if the plaintiffs had amended their complaint
disposing of the property in litigation (section 1 [e] of said and alleged that the lands and palay harvested therein are
Rule). The property or fund must, therefore be in litigation being claimed by the defendants, and consequently the
according to the allegations of the complaint, and the object ownership and possession thereof were in litigation, it
of appointing a receiver is to secure and preserve the appearing that the defendants (now petitioners) were in
property or thing in controversy pending the litigation. Of possession of the lands and had planted the crop or palay
course, if it is not in litigation and is in actual possession of harvested therein, as alleged in paragraph 6 (a) and (b) of
the plaintiff, the latter can not apply for and obtain the the petition filed in this court and not denied by the
appointment of a receiver thereof, for there would be no respondent in paragraph 2 of his answer, the respondent
reason for such appointment. judge would have acted in excess of his jurisdiction or with
a grave abuse of discretion in appointing a receiver thereof.
Delivery of personal property as a provisional remedy Because relief by way of receivership is equitable in nature,
consists in the delivery, by order of the court, of a personal and a court of equity will not ordinarily appoint a receiver
property by the defendant to the plaintiff, who shall give a where the rights of the parties depend on the determination
bond to assure the return thereof or the payment of of adverse claims of legal title to real property and one
damages to the defendant in the plaintiff's action to recover party is in possession (53 C. J., p. 26). The present case
possession of the same property fails, in order to protect the falls within this rule..
plaintiff's right of possession of said property, or prevent
In the case of Mendoza vs. Arellano and B. de Arellano,
this court said:
Petitioner Eleazar A. Adlawan, a private contractor, was In view of the foregoing, private respondent Aboitiz and
awarded by the National Irrigation Administration (NIA) Company, Inc. filed an Urgent Ex-Parte Motion 7 dated
and the Bureau of Public Highways (BPH) contracts for the July 7, 1982 praying for a stay of the July 6, 1982 Order
construction of various infrastructure projects of the dissolving the writ of preliminary attachment, thus
government to perform his obligations thereunder, maintaining the status quo. Private respondent further
petitioner sought financial assistance and support from prayed for the court to direct the sheriff of Davao City to
private respondent Aboitiz and Company, Inc. For failure desist and/or stop the enforcement or implementation of the
of petitioner to pay the installments and amortizations, order lifting the attachment and to grant them fifteen (15)
private respondent filed on May 13, 1982 before the Court days to elevate the matter to the Appellate Court.
of First Instance of Cebu a complaint 1 for the collection of Consequently, respondent Judge Tomol issued on the same
a sum of money and damages including an ex- day an Orders 8 granting the motion prayed for by private
parte application for the issuance of a writ of preliminary respondent Aboitiz and Company, Inc. Thus, the July 6,
attachment against the property of petitioner as defendant 1982 Order was stayed.
therein. The Executive Judge without notice and hearing
issued an order 2 on May 14, 1982 directing the issuance of In the meantime, three (3) Deputy Sheriffs of Cebu
a writ of preliminary attachment against all the properties implemented the Order lifting the Writ of Attachment and
of petitioner, real and personal, upon the filing of an were able to pull out some personal properties of petitioner
attachment bond for Four Million Pesos. The case, Adlawan. They were not able to take out all the attached
docketed as Civil Case No. R21761 was raffled and later properties in view of the subsequent Order of respondent
assigned to Branch XI of the Court of First Instance of judge to stay its implementation.
Cebu, presided by respondent Judge Valeriano P. Tomol.
On May 26, 1982, writs of preliminary attachment were As petitioner's Motion for a Bill of Particulars was not
issued addressed to the Sheriffs of Cebu, Davao City, immediately acted upon, he was not able to file an answer
Quezon City, Davao del Sur and Davao del Norte, directing or interpose any counterclaim. For this reason, petitioner
filed an Application for Award of Damages dated July 9, private respondent's office is situated in Cebu City while
1982 asking for a reasonable rental on the attached heavy petitioner is a resident of mainland Cebu, particularly
construction equipment, machineries and other properties at Minglanilla therefore the Court of First Instance of Cebu
the rate of P30,000.00 per day from the date of seizure until stationed in Lapu-Lapu should not accept the case.
said properties are actually returned to his possession and Furthermore, he alleged that the same personal properties
control.9 seized are in custodia legis by virtue of a writ of
preliminary attachment issued by the Court of First
Before the court a quo could act on the motions of Instance of Cebu, Branch XI, presided by respondent Judge
petitioner Adlawan, and before he could file an answer, his Tomol. The Court of First Instance of Cebu, Branch XVI in
motion for a bill of particulars not having been acted upon, Lapu-Lapu City, presided by Judge Ceferino E. Dulay
private respondent Aboitiz and Company, Inc., filed on denied the Omnibus Motion for lack of merit on September
July 13, 1982 a Notice of Dismissal or Withdrawal of 4, 1982. Petitioner Adlawan filed a Motion for
Complaint 10 as a matter of right in accordance with Section Reconsideration but the same was denied.
1, Rule 17 of the Rules of Court. Respondent Judge Tomol
issued an Order 11 dated July 15, 1982, the dispositive Hence, the present petition
portion of which reads: for certiorari and mandamus impleading respondent Judge
Valeriano P. Tomol as Presiding Judge of Branch XI of the
Accordingly, the termination of this case upon Court of First Instance of Cebu (now Branch XI, RTC-
the notice of dismissal voluntarily filed by the Cebu) and Branch XVI, CFI-Cebu presided by Judge
plaintiff is hereby confirmed. For emphasis, all Ceferino E. Dulay in Lapu-Lapu City (now Branch XXVII
orders of this Court issued prior to the filing of of RTC Cebu in Lapu-Lapu) and private respondent
said notice of dismissal are each and all Aboitiz and Company, Inc.
rendered functus officio. By the same token, all
pending incidents, particularly the defendant's The issues raised by petitioner Adlawan are the following,
motion for a bill of particulars and their petition to wit:
for damages against the Plaintiffs attachment
bond, are now beyond the competence of this 1) After the attachment of petitioner's properties
Court to consider for being moot and academic. was dissolved and discharged because it was
found by respondent Judge to be wrongful and
SO ORDERED illegal, does it not constitute grave and manifest
abuse of discretion on the part of the same
Petitioner Adlawan filed a Motion 12 dated July 28, 1982 respondent judge TO REFUSE to implement his
praying for the issuance of an order to the Provincial own order for the return of the attached properties
Sheriff of Cebu to implement and enforce the Order of to petitioner simply because private respondent
respondent Judge dated July 6, 1982 dissolving the writ of suddenly dismissed its complaint?
preliminary attachment and to secure the delivery of the
attached properties to the petitioner. Respondent Judge 2) On the other hand, the court, after having
issued an Order 13 dated December 20, 1982 denying the deprived petitioner possession and enjoyment of
Motion in view of the institution by private respondent his properties, by reason of an attachment which,
Aboitiz and Company, Inc. of a civil case (No. 619-L) for subsequently, was dissolved and discharged, was
delivery of Personal Properties with Replevin and Damages it not the clear, specific and inescapable duty of
before the Court of First Instance of Cebu, Branch XVI in that same court, to order that said properties be
Lapu-Lapu City on July 13, 1982 and the filing of returned and restored to the possession and
petitioner Adlawan of a case for damages (Civil Case No. enjoyment of petitioner?
22265) before the Court of First Instance of Cebu, Branch
X, in connection with the seizure of his properties under the 3) Are not the attached properties of petitioner
writ of preliminary attachment. under the custodia legis of the attaching court
Branch XI, CFI-Cebu (now Branch XI, RTC-
With regard to the replevin case filed by private respondent Cebu) and, therefore, subject to its jurisdiction
Aboitiz and Company, Inc., the Court of First Instance of and control? If so, does it not constitute grave and
Cebu, Branch XVI, Lapu-Lapu City, issued an Order 14 for manifest abuse of discretion on the part of the
the seizure and delivery of the properties described therein attaching court to literally wash his (sic) hands
to the private respondent. The seized properties were thus off any duty or responsibility by considering
delivered to private respondent by the Clerk of Court and himself (sic) as having been divested of authority
Ex-officio Provincial Sheriff on July 24, 1982. Petitioner to deal with such properties?
filed an Omnibus Motion 15 dated July 17, 1982 to
reconsider, dissolve and set aside the Writ of Seizure and 4) Did not the Lapu-Lapu Branch of CFI-Cebu
Replevin and to direct that the properties seized be returned act, without or in excess of his (sic) jurisdiction
to petitioner as well as to dismiss the complaint. In support or, at least, with grave abuse of discretion, in
of this motion, petitioner alleged, among others, that taking cognizance of the replevin case which
involves properties already in custodia legis of upon the expiration of the period to appeal
Branch XI of CFI-Cebu? therefrom if no appeal has been perfected.
5) On the other hand, was it not the clear, specific It is basic that once a judgment becomes final, the
and inescapable duty of the Lapu-Lapu Branch of prevailing party is entitled as a matter of right to a Writ of
CFI-Cebu, to dismiss the replevin case and Execution, and the issuance thereof is the Court's
dissolve the writ of replevin, not only because of ministerial duty."17
the principle of custodia legis but also because it
was in clear violation of Adm. Order No. 6 of this But as earlier stated, the reasons advanced by respondent
Honorable Supreme Court, which amends Adm. Judge Tomol for denying the enforcement of his order
Orders No. 147 and 328 of the Department (now dated July 6, 1982 which lifted the writ of attachment and
Ministry) of Justice? 16 the restoration of the seized properties to the defendant
petitioner herein are: [a] the filing by private respondent of
From the recital of facts may be gleamed a series of Civil Case No. 619-L with Branch XVI of CFI-Lapu-Lapu
peculiar events and circumstances requiring examination City for delivery of Personal Properties with Replevin and
and looking into in order that justice and equity may be Damages which as a consequence, the same properties
subserved. involved in this case were seized under a writ of replevin
upon order of aforesaid court and [b] the filing by petitioner
Petitioner's properties were attached on the strength of the of Civil Case No. 22265 before Branch X of the Court of
writs of preliminary attachment issued without notice and First Instance of Cebu, for damages.
hearing by the executive judge. These attached properties
were given to the custody of private respondent, Aboitiz Hence, the issues in this case center on the nature and
and Company, Inc. Petitioner then filed a Motion to purpose of the writ of attachment.
Dissolve the Writ of Attachment which was granted by
respondent Judge Tomol. Thus, petitioner was able to A writ of preliminary attachment is a provisional remedy
recover some of his properties. But on the following day, issued upon order of the court where an action is pending to
this order was stayed by the same respondent judge leaving be levied upon the property or properties of the defendant
the rest of petitioner's properties with private respondent. therein, the same to be held thereafter by the Sheriff as
Later, private respondent withdrew its complaint which was security for the satisfaction of whatever judgment might be
confirmed by respondent Judge Tomol. Petitioner Adlawan secured in said action by the attaching creditor against the
filed a motion to have the rest of his properties returned but defendant. 18
respondent judge refused to act on said motion due to cases
filed by both parties in the different branches of the Court
of First Instance of Cebu relating to the same case. The provisional remedy of attachment is available in order
that the defendant may not dispose of his property attached,
and thus secure the satisfaction of any judgment that may
After a careful examination of the records of the case We be secured by plaintiff from defendant. 19 The purpose and
rule in favor of petitioner Adlawan. function of an attachment or garnishment is two-fold. First,
it seizes upon property of an alleged debtor in advance of
There is no question that the order dated July 6, 1982 of final judgment and holds it subject to appropriation thus
respondent Judge Valeriano P. Tomol, Jr. lifting and prevents the loss or dissipation of the property by fraud or
vacating the order granting the writ of preliminary otherwise. Second, it subjects to the payment of a creditor's
attachment is a valid order, issued while he had jurisdiction claim property of the debtor in those cases where personal
over the case. The execution of aforesaid order of July 6, service cannot be obtained upon the debtor. 20 This remedy
1982 was stayed for a period of fifteen (15) days on motion is to secure a contingent lien on defendant's property until
of the plaintiff to enable the latter to question the propriety plaintiff can, by appropriate proceedings, obtain a judgment
or impropriety of the same in the appellate court. Instead, and have such property applied to its satisfaction, or to
plaintiff filed a civil case for delivery of Personal make some provision for unsecured debts in cases where
Properties with Replevin and Damages with another branch the means of satisfaction thereof are liable to be removed
of the CFI of Cebu. Accordingly, having failed to appeal or beyond the jurisdiction, or improperly disposed of or
question the aforementioned order in the appellate court as concealed, or otherwise placed beyond the reach of
originally manifested, the same became final and creditors. 21
executory.
Attachment is an ancillary remedy. It is not sought for its
Section 1, Rule 39 of the Revised Rules of Court provides: own sake but rather to enable the attaching party to realize
upon relief sought and expected to be granted in the main
Execution upon final judgment or orders. or principal pal action. 22
Execution shall issue upon a judgment or order
that finally disposes of the action or proceeding. The remedy of attachment is adjunct to the main suit,
Such execution shall issue as a matter of right therefore, it can have no independent existence apart from a
suit on a claim of the plaintiff against the defendant. In
other words, a attachment or garnishment is generally principal place of business is in Cebu City. Obviously, the
ancillary to, and dependent on, a principal proceeding, question posed by petitioner is venue.
either at law or in equity, which has for its purpose a
determination of the justice of creditor's demand. 23 A reading of the Omnibus Motion filed by petitioner, then
defendant therein, would reveal that he not only questioned
Thus, this Court ruled that upon levy by attachment of the the jurisdiction of the court but likewise alleged non-
property in question by order of the Court, said property jurisdictional grounds for dismissing the replevin case, such
fell into custodia legis of that court for purposes of that as the amount of the bond put up by Aboitiz & Co. as
civil case only. Any relief against such attachment and the grossly insufficient and that the same properties are
execution an issuance of a writ of possession that ensued involved both in the replevin case and in the original
subsequently could be disposed of only in that case. 24 collection case with preliminary attachment. Thus, in so
doing, the court acquired jurisdiction over him. In the case
More specifically, it was held that courts have no of Wang Laboratories, Inc. vs. Mendoza 29 this Court held:
jurisdiction to order the delivery of personal property
(replevin) to the plaintiff if the property is under Even though the defendant objects to the
attachment. 25 Only courts having supervisory control or jurisdiction of the court, if at the same time he
superior jurisdiction in the premises, have the right to alleges any non-jurisdictional ground for
interfere with and change possession of property dismissing the action, the court acquires
in custodia legis. 26 jurisdiction over him.
More recently, this Court ruled that the garnishment of Furthermore, in the case of City of Cebu
property to satisfy a writ of execution operates as an v. Consolacion, 30 We held that:
attachment and fastens upon the property a lien by which
the property is brought under the jurisdiction of the court . . . any of the branches of the Court of First
issuing the writ. It is brought into custodia legis under the Instance of the Province of Cebu, whether
sole control of such court. 27 stationed in the city of the same name or in any
of the municipalities of the province would be
During the life of the attachment, the attached property proper venue for its trial and determination, it
continues in the custody of the law, the attaching officer being admitted that the parties are residents of the
being entitled to its possession and liability for its safe Province of Cebu . . .
keeping. 28
Finally, the employment by counsel for private respondent
Based on the above-cited principles, it is obvious that the of dubious procedural maneuvers as what transpired in the
writ of preliminary attachment issued is already dissolved case at bar obviously to continue the wrongful and illegal
and rendered non-existent in view of the withdrawal of the possession and custody of petitioner's properties even after
complaint by Aboitiz and Company, Inc. More importantly, the dissolution of the attachment is to say the least, hardly
even if the writ of attachment can be considered commendable if not a form of "forum shopping", to seek
independently of the main case, the same, having been the court where he may possibly obtain favorable
improperly issued as found by respondent Judge Tomol judgment. 31
himself, is null and void and cannot be a justification for
holding petitioners' properties in custodia legis any longer. It may therefore be stated that the right to come before the
Courts to redress a grievance or right a wrong should be
To reiterate, an attachment is but an incident to a suit; and exercised with prudence and good faith. In the case
unless the suit can be maintained, the attachment must fall. of Indianapolis v. Chase National Bank, Trustee, 314 U.S.
69, it is opined that "Litigation is the pursuit of practical
When Aboitiz and Company, Inc. withdrew its complaint, ends, not a game of chess."
the attachment ceased to have a leg to stand on. The
attached properties of petitioner Adlawan which are in the WHEREFORE, in view of the foregoing, this Court rules
custody of private respondent Aboitiz should be returned to that the attached properties left in the custody of private
petitioner. This is only proper and equitable and in respondent Aboitiz and Company, Inc. be returned to
consonance with the rules and principles of law. The petitioner Eleazar V. Adlawan without prejudice to the
parties, by the withdrawal of the complaint, should be outcome of the cases filed by both parties.
placed in the same standing as they were before the filing
of the same. SO ORDERED.
San Juan Africa, Gonzales & San Agustin Law Office AQUINO, J., dissenting:chanrob1es virtual 1aw library
for Private Respondent.
1. REMEDIAL LAW; PROVISIONAL REMEDY;
ATTACHMENT; MAY ISSUE EVEN IF DEBT IS
SYLLABUS SECURED; CASE AT BAR. A writ of attachment may
be validly issued although the debt sued upon is secured by
mortgages where such mortgages covered not only the debt
1. REMEDIAL LAW; PROVISIONAL REMEDIES; sued upon but also the debtors other obligations; where the
ATTACHMENT; PURPOSE. The chief purpose of the debtors failed to assign to the creditor bank their sugar
remedy of attachment is to secure a contingent lien on proceeds which they had given as security for their loan;
defendants property until plaintiff can, by appropriate and where the writ is supported by a sufficient bond.
proceedings, obtain a judgment and have such property
applied to its satisfaction, or to make some provision for
unsecured debts in cases where the means of satisfaction DECISION
thereof are liable to be removed beyond the jurisdiction, or
improperly disposed of or concealed, or otherwise placed
beyond the reach of creditors (7 C.J.S. 190). ESCOLIN, J.:
The grounds upon which attachment may issue are set forth
in Section 1, Rule 57 of the Rules of Court. But quite apart
from the grounds stated therein, it is further provided in
Section 3 of Rule 57 that "an order of attachment shall be
granted only when it is made to appear by the affidavit of
the applicant or some other person who personally knows
the facts, that . . . there is no other sufficient security for the
claim sought to be enforced by the action."cralaw
virtua1aw library
The end of this stick was supplied with a hatchet-shaped This circumstance raises in our mind a reasonable doubt as
object, possibly of metal, and the knob of this instrument to whether the parties may not have been facing each other
crushed into the head of Damiano and penetrating into the when the blow was delivered. If such were the case, it
brain, there momentarily remained. Ponciano by giving the would be improper to find that the offense was qualified
stick a jerk succeeded in freeing it and immediately left the by alevosia. It must be admitted that the attack was sudden
scene of the crime. When he pulled the stick out, Damiano and unexpected to Damiano Jordan, and it would perhaps
fell to the ground. Damiano's wife who was sitting in the be possible to found upon this the conclusion that the attack
door of their house only a short distance away, saw what was characterized by surprise in such sense as to
had happened and immediately ran down to her husband constitute alevosia. However, in considering a question of
and told Fernando to aid her in carrying him to the house, this kind, every case must be judged by its particular facts;
which he did. The injured person lived for about six days and we find nothing in the evidence to show with certainty
and died as a result of the wound. It was shown by an that the aggressor consciously adopted a mode of attack
autopsy performed on the body that a hole was made in the intended to facilitate the perpetration of a homicide without
skull about as large as a half of peso coin. No motive risk to himself. a more reasonable, though still doubtful,
sufficient to account for this unjustifiable attack was inference would possibly be that he did not in fact intend to
proved, though there is a suggestion in the evidence that kill Damiano at all.
Ponciano may have been drinking.
In this connection it is worth while to note that Bonifacia give a bond sufficient to secure the pecuniary
Tubigon declares that immediately after the blow was truck liabilities which may be finally adjudged,
Ponciano Namit exclaimed I have long desired to strike ordering in the same decree the attachment of
some one and I have done so." This would seen to indicate, sufficient property to cover such liabilities,
in the absence of proof of other motive, that the accused should he fail to give bond.
was moved by a sudden desire to use his stick and that he
struck in obedience to this unreasoning impulse, without The amount of the bond shall be fixed in the
thinking of the conditions under which he was acting. Upon same decree and it shall not be less than one third
the whole we incline to the opinion that the fatal blow was of provable amount of the pecuniary liabilities.
the result of a casual encounter under conditions not
sufficiently defined to enable us to say that alevosia was
certainly present in the case.1awph!l.net We are of the opinion that this provisions and those related
to it in the Spanish Code of Criminal Procedure were
abrogated by necessary implication upon the enactment of
The offense committed is, in our opinion, to be qualified as General Orders No. 58. It is true that section 107 of this law
homicide, under article 404 of the Penal Code , in the recognizes the existence of the civil liability connected with
estimation of which no generic circumstance either of an the commission of crime and reserves the privileges
aggravating or attenuating nature should be taken into previously secured by law to the person injured by the
consideration; and the proper penalty is reclusion commission of an offense to take part in the prosecution
temporal in its medium degree. The accused should and to recover damages. Nevertheless, we think that the
accordingly be sentence to 14 years 8 months and 1 commission of an offense to the procedure contained in the
day, reclusion temporal with the accessories prescribed in Spanish Code of Criminal Procedure relating to the
article 59 of the Penal Code. attachment of property and giving of bond.
Another feature of the case of some importance is Upon reading the entire section 107 of General Orders No.
presented in connection with an attachment levied upon the 58, it appears obvious that the right which was intended to
property of the accused to secure the satisfaction of the be saved by the reservation therein made was the right of
civil liability incident to the commission of the homicide. It the party injured to appear and to be heard in all stages of
appears that while the cause was pending in the Court of the case with reference to such liability and to obtain a
First Instance an attorney appeared in the capacity of judgment for the damages occasioned by the wrongful act,
private prosecutor, representing the widow of the deceased, as well as the further right to appeal from any decision of
and presented an affidavit showing that the accused was the court denying any legal right connected therewith.
selling his property in order to elude the payment of any
indemnity to which he would be liable in case of
conviction. It was accordingly requested that an attachment It is to be noted that while the "sumario" of Spanish
should be issued against his property. an order was criminal procedure is in many respects similar to the
thereupon made by the court upon April 25, 1917, preliminary hearing before a committing magistrate
authorizing an attachment of property to the value of conducted pursuant to section 13 and 14 of General Orders
P1,500 unless he should give bond to answer in that No. 58, there is nevertheless an important difference, which
amount. The clerk of the court issued the order of is that the "sumario" constitutes a preliminary stage in the
attachment upon the same date, and three days later the criminal prosecution, and is not merely a step preparatory
court rendered its decision finding the accused guilty and tot he initiation of the proceedings. The evidence taken in
ordering him to indemnify the widow and children of the the "sumario" therefore, capable for being used in the
deceased in the sum of P1,000. The attachment was not plenary stage of the prosecution and if ratification was not
immediately levied; but after an appeal had been taken, the required, served as the basis of judgment. (Ley de 18 de
sheriff, on November 28, 1917, levied the same upon five junio de 1870 Law of June 18, 1870.) On the contrary,
parcels of land and a house belonging to the accused. It the proceedings in the preliminary hearing never constitute
does not appear from the record in this case whether the a basis for a subsequent judicial declaration of guilt. The
accused has ever given the bond necessary to procure the "sumario" has been abrogated by the enactment of General
dissolution of this attachment, although upon December 19, Orders No. 58 above referred to; and the ground expressed
1917, after the cause had been brought to this Court by in article 589 of the Spanish Code of Criminal Procedure
appeal, an order was here entered authorizing the Court of for the attachments of the property of the accused therefore
First Instance to act in the latter of dissolving the no longer here exists.
attachment, if bond should be given.
With the adoption of General Orders No. 58, there was
It is argued that the attachment granted in this case is necessarily introduced into these Islands a system of
sustainable under article 589 of the Law of Criminal criminal procedure embodying the principles recognized in
Procedure of Spain, which is to the following effect: the system of criminal procedure generally in vogue in the
United States; and any characteristics or rule of the former
system inconsistent with these principles must be held to
ART 589. When from the record of a cause have been abrogated. Attachment in American law is a
appear circumstances tending to establish the purely statutory remedy. It does not exist unless expressly
guilt of a person, the judge shall require him to
given by statute and as it is an extraordinary and summary
remedy, it is unavailable except in those cases where the
statute expressly permits its issuance.
From what has been said result that the attachment effected
under the order of the Court of First Instance dated April
25, 1917. must be considered to have been improvidently
granted. The same is hereby declared to be of no effect, by
this declaration will of course in no wise prejudice the right
of the widow and children of the deceased to enforce the
payment of the indemnity for which judgment was rendered
against the accused. The judgment of the trial court in
respect to the penalty imposed upon the accused, is
modified by subsisting 14 years 8 months and 1
day, reclusion temporal, with accessories prescribed in
article 59 of the Penal Code for so much thereof as imposes
the penalty of cadena perpetua, with the accessories
prescribed in article 54 of the same Code. As thus modified
the judgment of the lower court is affirmed, with costs
against the appellant. So ordered.
LUIS F. GENERAL, petitioner, enforcement of the obligation, enforcement which, as stated
vs. in the order, is suspended temporarily, pending action by
JOSE R. DE VENECIA, Judge of First Instance of the Government.
Camarines Sur, and PETRA VDA. DE RUEDAS, also
representing Ernesto, Armando and Gracia But the case for petitioner is stronger when we reflect that
(minors), respondents. his promise is to pay P4,000 "within six months after peace
has been declared." It being a matter of contemporary
Cea, Blancaflor and Cea for petitioner. history that the peace treaty between the United States and
Jose M. Peas for respondents Ruedas. Japan has not even been drafted, and that no competent
No appearance for the respondent judge. official has formally declared the advent of peace (see
Raquiza vs. Bardford, 75 Phil., 50), it is obvious that the
BENGZON, J.: six-month period has not begun; and Luis F. General has at
present and in June, 1946, no demandable duty to make
payment to plaintiffs, independently of the moratorium
Petition for certiorari to annul the order of the Court of directive.
First Instance of Camarines Sur denying the motion to
dismiss the complaint, and to vacate the attachment issued,
in civil case No. 364 therein entitled, "Ruedas vs. Luis F. On the question of validity of the attachment, "the general
General." rule is that, unless the statute expressly so provides, the
remedy by attachment is not available in respect to a
demand which is not due and payable, and if an attachment
That complaint was filed on June 4, 1946, to recover the is issued upon such a demand without statutory authority it
value of a promissory note, worded as follows: is void." (7 C.J.S., p. 204.)
For value received, I promise to pay Mr. It must be observed that under our rules governing the
Gregorio Ruedas the amount of four thousand matter the person seeking a preliminary attachment must
pesos (P4,000), in Philippine currency within six show that "a sufficient cause of action exists" and that the
(6) months after peace has been declared and amount due him is as much as the sum for which the order
government established in the Philippines. of attachment is granted" (sec. 3, Rule 59). Inasmuch as the
commitment of Luis F. General has not as yet become
Naga, Camarines Sur, September 25, 1944. demandable, there existed no cause of action against him,
and the complaint should have been dismissed and the
attachment lifted. (Orbeta vs. Sotto, 58 Phil., 505.)
(Sgd.) LUIS F. GENERAL
And although it is the general principle that certiorari is not
available to correct judicial errors that could be
It prayed additionally for preliminary attachment of straightened out in an appeal, we have adopted the course
defendant's property, upon the allegation that the latter was that where an attachment has been wrongly levied the writ
about to dispose of his assets to defraud creditors. Two may be applied for, because the remedy by appeal is either
days later, the writ of attachment was issued upon the filing unavailable or inadequate. (Leung Ben vs. O'Brien, 38
of a suitable bond. Phil., 182; Director of Commerce and
Industry vs. Concepcion, 43 Phil., 384;
Having been served with summons, the defendant therein, Orbeta vs. Sotto, supra.)
Luis F. General, submitted, on June 11, 1946, a motion
praying for dismissal of the complaint and dissolution of Wherefore, the writ of attachment is quashed and the
the attachment. He claimed it was premature, in view of the complaint is dismissed. Costs for petitioner. So ordered.
provisions of the debt moratorium orders of the President
of the Philippines (Executive Orders Nos. 25 and 32 of Moran, C.J., Paras, Feria, Pablo, Hilado, Padilla, and
1945). Denial of this motion and of the subsequent plea for Tuason, JJ., concur.
reconsideration, prompted the institution of this special Perfecto, J., concurs in the result.
civil action, which we find to be meritorious, for the reason
that the attachment was improvidently permitted, the debt
being within the terms of the decree of moratorium
(Executive Order No. 32).
Perlas, Joven & Associate Law Office for private Under date of February 7, 1976, private
respondent. respondent filed a 'Motion for Issuance
of Writ of Preliminary Attachment'
against the properties of petitioners,
alleging, among others, that the latter
GUTIERREZ, JR., J.: are indebted to her in the principal
amount of P13,000.00, which,
according to her, she seeks to recover
This is a petition to review the decision of the Court of in Civil Case No. Q-18444.
Appeals, now Intermediate Appellate Court, which
affirmed the order for the issuance of a writ of preliminary
attachment, and other related orders of the then Court of On March 1, 1976, petitioners filed
First Instance of Rizal in Civil Case No. Q-18444. their opposition to the motion for the
issuance of writ of preliminary
attachment, alleging among others, that
The antecedent facts are summarized by the appellate court Civil Case No. Q-18444 is an action for
as follows: annulment of sale and recovery of the
house and lot mentioned therein, and
Petitioners are the defendants and not for recovery of sum of money. It is
private respondent is the plaintiff in contended that a writ of preliminary
Civil Case No. Q-18444, Court of First attachment is not the proper remedy for
Instance of Rizal, Branch XVII-B- the protection of the rights of the estate.
Quezon City, for annulment of sale, In the same opposition, petitioners
recovery of ownership and possession refuted the allegations of private
of the house and lot situated at No. 24 respondent in her motion that the
Scout Limbaga, Diliman, Quezon City, complaint in Civil Case No. Q-18444 is
the same, allegedly, having been sold in one for collection of a sum of money
fraud of creditors. allegedly contracted fraudulently by
petitioners.
Private respondent filed the complaint
in Civil Case No. Q18444, in her On March 26, 1976, respondent Judge
capacity as the administratrix of the issued an order, granting the motion of
intestate estate of the late William private respondent and issuing a writ of
Gruenberg. preliminary attachment against the
properties of petitioners, respondent
It is alleged in the complaint in Civil Judge stating that no opposition had
Case No. Q-18444 that the house and been filed to the motion.
lot in question, which were sold to
defendant Albert Gruenberg (one of the In the latter part of July, 1976,
petitioners), form part of the conjugal respondent Sheriff and/or his deputies
partnership of the Gruenberg spouses, served on petitioners and the managers
which must answer for the obligations of the Hollywood Theater, Palace
that deceased William Gruenberg might Theater and Illusion Theatre a writ of
have incurred during his lifetime in his preliminary attachment and notice of
capacity as manager and administrator garnishment against petitioners and
of the conjugal partnership; and that the personally in favor of respondent
sale of the house and lot before the Flores.
death of William Gruenberg, when at
that time two creditors had already filed It is alleged that the order of respondent
suits against him for collection of Judge was not received by petitioners'
unpaid obligations, and the latter had new counsel but upon being informed
unpaid obligation to plaintiff Elda R, by petitioners of the writ of preliminary
Flores (private respondent) in the attachment and notice of garnishment,
amount of P13,000.00, exclusive of petitioners'new counsel promptly went
to the court of respondent Judge and ESTATE OF THE LATE WILLIAM
then and there he discovered that GRUENBERG, SR.;
petitioners' opposition to the motion
was not attached to the record, because III. THE COURT OF APPEALS
the same was forwarded to Branch ERRED IN RULING THAT
XVIII to which Civil Case No. Q- PETITIONERS CAN BE CITED FOR
18444 was originally assigned, CONTEMPT FOR THE ALLEGED
FAILURE TO COMPLY WITH THE
On July 30, 1976, petitioners filed (a) a NOTICE OF GARNISHMENT
motion for reconsideration of the order ADDRESSED TO THIRD PARTIES.
granting the motion for the issuance of
a writ of preliminary attachment, and The issues are interrelated and may be discussed together.
(b) a motion to recall the writ of They all focus on the proprietary of the writ of attachment
preliminary attachment and notice of and garnishment against the petitioners' properties issued
garnishment, on the ground that it is not by the trial court and affirmed by the appellate court.
true that petitioners did not oppose the
motion of private respondent, and that
there is no valid basis to grant the In her affidavit supporting the motion for a writ of
motion. preliminary attachment, the private respondent stated that
her case "... is one of the situations covered by Section 1
(d), Rule 57 of the Rules of Court whereby a writ of
On August 16, 1976, respondent Judge preliminary attachment may issue." Section 1 (d), Rule 57
issued an order, denying the motions of provides:
petitioners.
Grounds upon which attachment may
On October 28, 1976, respondent Judge issue.A plaintiff or any proper party
issued an order, requiring petitioners to may, at the commencement of the
appear before his court to explain why action or at any time thereafter, have
they should not be punished for the property of the adverse party
contempt for denying or disobeying the attached as security for the satisfaction
lawful processes of the court. of any judgment that may be recovered
in the following cases:
The issuance of the "show cause" order prompted the
petitioners to file a petition for certiorari with writ of xxx xxx xxx
preliminary injunction in the Court of Appeals. The petition
was dismissed. Hence, the instant petition
(d) In an action against a party who has
been guilty of a fraud in contracting the
The issues raised to us are embodied in the petitioners' debt or incurring the obligation upon
assignments of errors as follows: which the action is brought, or in
concealing or disposing of the property
I. THE COURT OF APPEALS for the taking, detention or conversion
ERRED IN OVERLOOKING THE of which the action is brought.
FACT THAT WRIT OF
PRELIMINARY ATTACHMENT xxx xxx xxx
COULD ONLY BE GRANTED TO
SECURE THE SATISFACTION OF A
JUDGMENT IN A CASE IN WHICH There are various reasons why this petition should prosper.
SAID WRIT IS PRAYED FOR;
Private respondent Elda R. Flores, as a claimant for
II. THE COURT ERRED IN P13,000.00 against the estate of William Gruenberg, Sr.,
SUSTAINING THE ISSUANCE OF was appointed administratrix of the estate of the deceased.
THE WRIT OF PRELIMINARY In her capacity as administratrix, she filed Civil Case No.
ATTACHMENT FOR THE Q-18444 against the petitioners. This main case was for the
PERSONAL BENEFIT OF PRIVATE annulment of a deed of sale executed by the late William
RESPONDENT IN CIVIL CASE NO. Gruenberg, Sr., in favor of Albert Gruenberg and for the
Q-18444, NOTWITHSTANDING recovery of possession and ownership of the house and lot
THE FACT THAT SAID involved in that sale.
RESPONDENT INSTITUTED SAID
ACTION NOT IN HER PERSONAL The motion for a writ of preliminary attachment filed by
CAPACITY, BUT AS Flores, however, states:
ADMINISTRATRIX OF THE
1. Defendants are indebted to plaintiff estate, Section 8 of Rule 86 calls for the appointment of a
in the amount of P13,000.00 exclusive special administrator to defend the estate against such
of accrued interest and collection claim.
charges, which plaintiff seeks to
recover in the instant action; and A court order which violates the Rules constitutes grave
abuse of discretion as it wrecks the orderly procedure
2. Defendants are guilty of fraud in prescribed for the settlement of claims against deceased
contracting the debt or incurring the persons designed to protect the interests of the creditors of
obligation due plaintiff in that they the decedent. (See Dy v. Enage, 70 SCRA 96). Allowing
conspired and confederated with each the private respondent in the annulment case to attach the
other as mother End son to defraud petitioners' properties for the benefit of her P13,000.00
other creditors one of whom is plaintiff, claim against the estate would give her an undue advantage
by simulating the sale of house and lot over other creditors against the estate,
situated at No. 24 Scout Limbaga
Street, Quezon City ... . Moreover, the P13,000.00 claim of the respondent cannot
be settled in the case for annulment of the deed of sale,
While the respondent filed the motion in her capacity as wherein the writ of attachment is sought. What she seeks to
administratrix of the Gruenberg estate, the motion for a writ be secured is not the judgment in the main case but a mere
of attachment and its supporting affidavit show that the claim against the estate which is still to be considered and
attachment was intended to secure only her P13,000.00 adjudicated by the court.
claim against the estate. Obviously, this cannot be done.
The rules on the issuance of a writ of attachment must be
A writ of attachment is a remedy ancillary to the principal construed strictly in favor of the defendant. The remedy of
proceeding. The well-entrenched principle is that: attachment is harsh, extraordinary, and summary in nature.
If all the requisites for the issuance of the writ are not
Attachment is a juridical institution present, the court which issues it acts in excess of its
which has for its purpose to secure the jurisdiction.
outcome of the trial, that is, the
satisfaction of the pecuniary obligation In Salas v. Adil (90 SCRA 121), we stated:
really contracted by a person or
believed to have been contracted by A preliminary attachment is a rigorous
him, either by virtue of a civil remedy, which exposes the debtor to
obligation emanating from contract or humiliation and annoyance, such it
from law, or by virtue of some crime or should not be abused as to cause
misdemeanor that he might have unnecessary prejudice. It is, therefore,
committed, and the writ issued, granted the duty of the court, before issuing the
it, is executed by attaching and safely writ, to ensure that all the requisites of
keeping all the movable property of the the law have been complied with;
defendant, or so much thereof as may otherwise the judge acts in excess of
be sufficient to satisfy the plaintiff's his jurisdiction and the writ so issued
demands ... . (Guzman v. Catolico, et shall be null and void. (Guzman v.
al., 65 Phil. 257). Catolico, 65 Phil. 257, 261).
The purpose behind the filing of the complaint was to xxx xxx xxx
recover a piece of property allegedly belonging to the
intestate estate of the deceased. Hence, any writ of
attachment necessary to secure the judgment must be Considering the gravity of the
related to the protection of the estate. The writ may not allegation that herein petitioners have
issue if only to protect the personal interests of the private removed or disposed of their properties
respondent as a creditor of that estate. or are about to do so with intent to
defraud their creditors, and further
considering that the affidavit in support
The records show that the private respondent's interest in of the preliminary attachment merely
the estate is to recover a debt based on a contract with the states such ground in general terms,
deceased Gruenberg, For this reason, she instituted the without specific allegations of
special proceedings for the settlement of the intestate estate circumstances to show the reason why
resulting to her appointment as administratrix. Under these plaintiffs believe that defendants are
circumstances, the private respondent's remedy to recover disposing of their properties in fraud of
the outstanding debt of the deceased is to follow the creditors, it was incumbent upon
procedure in Rule 86 on claims against an estate. As a respondent Judge to give notice to
matter of fact, if an administrator has a claim against an petitioners and to allow them to present
their position at a hearing wherein no justification why the attachment should reach out to the
evidence is to be received. petitioners' interests in the Hollywood Theatre, the Palace
Theatre, and the Illusion Theatre. The petitioners also point
Following the principle of strict compliance with all out that there is no showing of any attempt on their part to
requisites, this Court has also ruled that "when the facts, or conceal or to dispose of the house and lot nor of any change
some of them, stated in the plaintiff's affidavit are shown in the title or condition of the property. Considering all the
by the defendant to be untrue, the writ may be considered foregoing, we find the writ of preliminary attachment to
as improperly or irregularly issued." (National Coconut have been improvidently issued.
Corporation V. Pecson, et al., 90 Phil. 809).
WHEREFORE, the petition is hereby GRANTED. The
The February 7, 1976 motion for issuance of a writ of decision of the former Court of Appeals is SET ASIDE.
preliminary attachment and the affidavit of preliminary The writ of preliminary attachment and the notice of
attachment are misleading. First, the private respondent garnishment issued in Civil Case No. Q-18444 are
states that the "defendants are indebted to plaintiff in the DISSOLVED. The other related orders issued in
amount of P13,000.00" exclusive of interests and collection connection with the writ of attachment are SET ASIDE.
charges. Then, she avers that the "defendants are guilty of
fraud in contracting the debt or incurring the obligation due SO ORDERED.
plaintiff ".
One of the reasons for granting the motion for the issuance
of a writ of preliminary attachment was the court's finding
that the petitioners' failed to file an opposition thereto. It
turns out, however, that the petitioners filed a timely
opposition to the motion but it was filed in another branch
of the court where the case had earlier been assigned.
Nevertheless, despite this timely opposition, the motion for
reconsideration of the order for the issuance of a writ of
preliminary attachment, was summarily denied for lack of
merit.
3. That in the interest of justice and in order not to render 5. That an order dated January 5, 1972 was issued by this
judgment on said money claim null and void for lack of Honorable Court denying our motion.
jurisdiction, the plaintiffs desire to present completely
competent, relevant and material evidence before the 6. That in the meantime and in due course continuation of
proper probate court to substantiate their aforesaid money the trial was held and the formal offer in evidence of all the
claims and for this reason they are constrained to move this exhibits of the defendants was effected under date of
Honorable Court to dismiss provisionally this case to move February 19, 1972, which exhibits were admited by the
this Honorable Court to dismiss provisionally this case Court inits order of May 4, 1972.
without prejudice of refiling same with the proper probate
court and of reproducing therein the evidence and
presenting rebuttal evidence according as the nature of 7. That as it is the case of the defendants is completed with
defendants' evidence may demand. their counterclaim duly substantiated.
4. That in view of the foregoing considerations, the 8. That the counterclaim is in itself an independent action,
plaintiffs hereby manifest that they no longer will present not subject to suspension or dismissal because it survives
rebuttal evidence resrving same to be adduced instead in the deceased Don Emmanuel O. Tolentino.
the proper probate court.
9. That as a matter of fact is is now deemed submitted to
WHEREFORE, this Honorable Court is most respectfully the decision of the Honorable Court without any strings
prayed to dismiss provisionally the above-entitled case attached to said counterclaim.
without prejudice of refiing same with the proper probate
court and of presenting and reproducing therein plaintiffs' WHEREFORE, in reiteration, this Honorable Court is most
evidence for final determination and decision by said respectfully prayed to grant the motion to dismiss plaintiffs'
probate court." complaint, and to declare the case of the defendants as far
as their counterclaim is concerned, submitted for the
On Juy 13, 1972, defendants filed the following: decisionof this Honorable Court." (Pp. 12-13, Recod.)
DEFENDANTS COUNTER-MANIDFESTATION AND And on July 18, 1972, the court issued the following order:
OPPOSITION TO THE MOTION DATED JUNE 27, 1972
"For lack of merit, the manifestation and motion filed by
Atty. Cipriano C. Alvizo, Sr. for the plaintiffs (See: pp.
543-544, Records), and the counter-manifestation and
opposition filed by Atty. Vicente Jayme for the defendants
COME the defendants in the above-entitled case, thru the (See: pp. 547-548 Records) are hereby ordered DENIED.
undersigned counsel, and to this Honorable Court most
respectfully manifest and submit an opposition to the
dismissal of defendants' counterclaim on the following ASprayed of (for) by Atty. Alvizo, Sr., set this case for the
grounds: reception of the rebuttal and surrebuttal evidence on July
25, 1972 from 8:30 A.M. to P.M. with due notice to all
counsel." (Page 14, Record.)
1. That copy of plaintiffs' Manifestation and Motion dated
June 27, 1972 appears to have been mailed from Butuan
City on June 28, 1972, and received by us after July 3, A motion dated July 23, 1972 for reconsideration of thir
1972. order was filed by plaintiffs but on July 25, 1972, what
happened is narrated in the order of the court of said date as
follows:
2. That as far back as December 13, 1971 we have
submitted to this Honorable Court a pleading entitled
"JURISDICTIONAL MOTION FOR DISMISSAL OF "When this case was called for the reception of plaintiffs'
PLAINTIFFS' COMPLAINT (PRIVILEGED AND rebuttal evidence for the second time at exactly 11:23 A.M.
URGENT)'. today, Atty. Cipriano C. Alvizo, Sr., counsel for the
plaintiffs, together with all the plaintiffs themeslves, failed
to appear in court despite due notice to them in open court
3. What our grounds therein alleged are hereto replead and the first time this case was called at 8:30 A.M., and in spite
reproduced IN TOTO. of the two personal notices given to said Atty. Alvizo, Sr.,
who was by then withinthe sala of Branch 1 of this court
4. That said motionhas beenopposed by the plaintiffs under sitting, whre no sessions were yet had, first by Court Proces
a pleaing entitled 'OPPOSITION TO JURISDICTIONAL Server Rodrigo T. Macion and second, by CIC Raymundo
C. Morgadez minutes before the second call as above said.
The reception of plantiffs reguttal evidence was previously concerned, without prejudice to its being filed as a money
set by the court, upon previous prayer of plaintiffs, thru claim in special proceedings for the settlement of the estate
counsel, in their Manifestaion and Motion dated May 15, of the deceased Emmanuel O. Tolentino. Respondent court
1972 (See: p. 537, Records), on July 3, 1972 in anorder is further ordered to proceed with the trial of respondents'
dated May 22, 1972 (See: p. 541, Records). Later, counter-claims by allowing the petitioners to present their
plaintiffs, thru counsel, prayed the court again in their evidence in defense thereto, after which another decision
Urgent Ex Parte Motion dated June 30, 1972 should be rendered as the facts and the law may warrant.
'to reset for July 25, 1972 the hearing of this case.' (See: p. The incident of contempt shall be continued upon
545, Records.) appropriate motion of the interested parties. With respect to
the matter of alleged irregular and illegal attachment
Again plaintiffs' above said motion was granted by the secured by Atty. Elias Q. Tan from the Court of First
court as prayed for by them in an Order dated July 18, 1972 Instance of Cebu, the Court rules that it should be made the
resetting the reception of plaintiffs' rebuttal evidence today, subject of a separate action, albeit the restraining order
July 25, 1972 from 8:30 A.M. to 7:00 P.M., with due notice issued by this Court on May 4, 1973 is hereby maintained
to said Atty. Cipriano C. Alvizo, Sr. by personal service on until such appropriate action is filed, in which event, the
July 22, 1972 (See: p. 550, Records). court taking cognizance thereof may act as it may deem
proper in regard to said restraining order which was issued
only to maintain the status quo, for the purpose of avoiding
First call of the case was had Atty. Alvizo, Sr. appeared and that the controversy between the parties should be more
presented plaintiffs' Urgent Motion for Reconsideratio complicated in the instant proceeding.
dated July 23, 1972 but only filed today 25 minutes before
the first call. The court intimated to said Atty. Alvizo, Sr.
that it could not entertain the said motion on grounds which Costs against respondents.
the court would give in an Order to be issued later and
insisted on plaintiffs' presentationof their promised rebuttal
evidence. The court, however, in fairness to plaintifs who
were absent in court, gave said Atty. Alvizo, Sr. until 11:00
A.M. to present his rebuttal witnesses. The the second call
came at exactly 11:23 A.M. as above said and what
happened was what was already narrated by the court at the
opening of this Order.
The appellate tribunal relied on the case of Sievert v. Court Under section 3, Rule 57 of the Rules of Court, the only
of Appeals, 168 SCRA 692 (1988) in arriving at the requisites for the issuance of the writ are the affidavit and
foregoing conclusion. It stated that: bond of the applicant. As has been expressly ruled in BF
Homes, Inc. v. Court of Appeals, 190 SCRA 262 (1990),
Valid service of summons and a copy citing Mindanao Savings and Loan Association, Inc. v.
of the complaint vest jurisdiction in the Court of Appeals, 172 SCRA 480 (1989), no notice to the
court over the defendant both for the adverse party or hearing of the application is required
purpose of the main case and for inasmuch as the time which the hearing will take could be
purposes of the ancillary remedy of enough to enable the defendant to abscond or dispose of his
attachment and a court which has not property before a writ of attachment issues. In such a case,
acquired jurisdiction over the person of a hearing would render nugatory the purpose of this
defendant, cannot bind the defendant provisional remedy. The ruling remains good law. There is,
whether in the main case or in any thus, no merit in the private respondents' claim of violation
ancillary proceeding such as attachment of their constitutionally guaranteed right to due process.
proceedings (Sievert v. Court of
Appeals, 168 SCRA 692). (Rollo, p. The writ of preliminary attachment can be applied for and
24) granted at the commencement of the action or at any time
thereafter (Section 1, Rule 57, Rules of Court). In Davao
The private respondents, in their comment, adopted and Light and Power, Co., Inc. v. Court of Appeals, supra, the
reiterated the aforementioned ruling of the Court of phrase "at the commencement of the action" is interpreted
Appeals. They added that aside from the want of as referring to the date of the filing of the complaint which
jurisdiction, no proper ground also existed for the issuance is a time before summons is served on the defendant or
of the writ of preliminary attachment. They stress that the even before summons issues. The Court added that
fraud in contracting the debt or incurring the obligation
upon which the action is brought which comprises a ground . . . after an action is properly
for attachment must have already been intended at the commenced by filing of the
inception of the contract. According to them, there was no complaint and the payment of all
intent to defraud the petitioner when the postdated checks requisite docket and other fees the
were issued inasmuch as the latter was aware that the same plaintiff may apply and obtain a writ of
were not yet funded and that they were issued only for preliminary attachment upon the
purposes of creating an evidence to prove a pre-existing fulfillment of the pertinent requisites
obligation. laid down by law, and that he may do
so at any time, either before or after
Another point which the private respondents raised in their service of summons on the defendant.
comment is the alleged violation of their constitutionally And this, indeed, has been the
guaranteed right to due process when the writ was issued immemorial practice sanctioned by the
without notice and hearing. courts: for the plaintiff or other proper
party to incorporate the application for
In the later case of Davao Light and Power Co., Inc. v. attachment in the complaint or other
Court of Appeals, G.R. No. 93262, November 29, 1991, we appropriate pleading (counter-claim,
had occasion to deal with certain misconceptions which cross-claim, third-party-claim) and for
may have arisen from our Sievert ruling. The question the Trial Court to issue the writ ex-
which was resolved in the Davao Light case is whether or parte at the commencement of the
not a writ of preliminary attachment may issue ex- action if it finds the application
parte against a defendant before the court acquires otherwise sufficient in form and
jurisdiction over the latter's person by service of summons substance.
or his voluntary submission to the court's authority. The
Court answered in the affirmative. This should have The Court also pointed out that:
. . . It is incorrect to theorize that after It is appropriate to reiterate this Court's exposition in
an action or proceeding has been the Davao Light and Power case cited earlier, to wit:
commenced and jurisdiction over the
person of the plaintiff has been vested . . . writs of attachment may properly
in the Court, but before acquisition of issue ex-parte provided that the Court
jurisdiction over the person of the is satisfied that the relevant requisites
defendant (either by service of therefore have been fulfilled by the
summons or his voluntary submission applicant, although it may, in its
to the Court's authority), nothing can discretion, require prior hearing on the
be validly done by the plaintiff or the application with notice to the
Court. It is wrong to assume that the defendant, but that levy on property
validity of acts done during the period pursuant to the writ thus issued may not
should be dependent on, or held in be validly effected unless preceded, or
suspension until, the actual obtention of contemporaneously accompanied by
jurisdiction over the defendants person. service on the defendant of summons, a
The obtention by the court of copy of the complaint (and of the
jurisdiction over the person of the appointment of guardian ad litem, if
defendant is one thing; quite another is any), the application for attachment (if
the acquisition of jurisdiction over the not incorporated in but submitted
person of the plaintiff or over the separately from the complaint), the
subject matter or nature of the action, order of attachment, and the plaintiff's
or the res or object thereof. attachment bond.
It is clear from our pronouncements that a writ of The question as to whether a proper ground existed for the
preliminary attachment may issue even before summons is issuance of the writ is a question of fact the determination
served upon the defendant. However, we have likewise of which can only be had in appropriate proceedings
ruled that the writ cannot bind and affect the defendant. conducted for the purpose (Peroxide Philippines
However, we have likewise ruled that the writ cannot bind Corporation V. Court of Appeals, 199 SCRA 882 [1991]).
and affect the defendant until jurisdiction over his person is It must be noted that the spouses Evangelista's motion to
eventually obtained. Therefore, it is required that when the discharge the writ of preliminary attachment was denied by
proper officer commences implementation of the writ of the lower court for lack of merit. There is no showing that
attachment, service of summons should be simultaneously there was an abuse of discretion on the part of the lower
made. court in denying the motion.
It must be emphasized that the grant of the provisional Moreover, an attachment may not be dissolved by a
remedy of attachment practically involves three stages: showing of its irregular or improper issuance if it is upon a
first, the court issues the order granting the application; ground which is at the same time the applicant's cause of
second, the writ of attachment issues pursuant to the order action in the main case since an anomalous situation would
granting the writ; and third, the writ is implemented. For result if the issues of the main case would be ventilated and
the initial two stages, it is not necessary that jurisdiction resolved in a mere hearing of a motion (Davao Light and
over the person of the defendant should first be obtained. Power Co., Inc. v. Court of Appeals, supra, The
However, once the implementation commences, it is Consolidated Bank and Trust Corp. (Solidbank) v. Court of
required that the court must have acquired jurisdiction over Appeals, 197 SCRA 663 [1991]).
the defendant for without such jurisdiction, the court has no
power and authority to act in any manner against the
defendant. Any order issuing from the Court will not bind In the present case, one of the allegations in petitioner's
the defendant. complaint below is that the defendant spouses induced the
plaintiff to grant the loan by issuing postdated checks to
cover the installment payments and a separate set of
In Sievert v. Court of Appeals, supra, cited by the Court of postdated cheeks for payment of the stipulated interest
Appeals in its questioned decision, the writ of attachment (Annex "B"). The issue of fraud, then, is clearly within the
issued ex-parte was struck down because when the writ of competence of the lower court in the main action.
attachment was being implemented, no jurisdiction over the
person of the defendant had as yet been obtained. The court
had failed to serve the summons to the defendant. WHEREFORE, premises considered, the Court hereby
GRANTS the petition. The challenged decision of the
Court of Appeals is REVERSED, and the order and writ of
The circumstances in Sievert are different from those in the attachment issued by Hon. Cezar C. Peralejo, Presiding
case at bar. When the writ of attachment was served on the Judge of Branch 98, Regional Trial Court of Quezon City
spouses Evangelista, the summons and copy of the against spouses Evangelista are hereby REINSTATED. No
complaint were also simultaneously served. pronouncement as to costs.
.R. No. L-46009 May 14, 1979 occupants of Lots Nos. 2 and 3 have direct access to
Bonifacio Drive, a National Highway, hence, Lot No. 5 is
RICARDO T. SALAS and MARIA SALAS, petitioners, neither needed nor required for the egress or ingress of the
vs. occupants thereof; and that private respondents, as a matter
HON. MIDPANTAO L. ADIL, as Judge of Branch II, of fact, since 1964 had excluded and separated completely
Court of First Instance of Iloilo, ROSITA BEDRO and their property (Lots Nos. 2 and 3) from Lot No. 5 by
BENITA YU, respondents. building a concrete wall on the boundary thereon without
providing any gate as entrance or exit towards Lot No. 5;
and that private respondents have no personality to question
Castro Law Office for petitioners. the validity of the deed of sale over Lot No. 5 since they
were not parties to the same and the sale was duly approved
Tirso Espelete and Fortunato A. Padilla for private by the probate court.
respondents.
In a motion dated May 12, 1977, private respondents filed a
Motion for Attachment, alleging, among others, that the
case was "for annulment of a deed of sale and recovery of
ANTONIO, J.: damages" and that the defendants have removed or
disposed of their properties or are about to do so with intent
to defraud their creditors especially the plaintiffs in this
Certiorari to nullify the Order of Attachment of May 13, case.
1977, as well as the Writ of Attachment dated May 16,
1977, issued by respondent Judge in Civil Case No. 10770
of the Court of First Instance of Iloilo, entitled "Rosita On May 13, 1977, respondent Judge issued ex-parte a Writ
Bedro and Benita Yu v. Spouses Ricardo T. Salas and of Attachment "against the properties of the defendants
Maria Salas, et al. particularly Lots Nos. 1 and 4 of Psc-2157 less the building
standing thereon upon the plaintiffs filing a bond in the
amount of P200,000.00 subject to the approval of this
On September 10, 1976, respondents Rosita Bedro and Court." After a surety bond in the amount of P200,000.00,
Benita Yu filed the afore-mentioned civil action with the executed on May 11, 1977 by the Central Surety and
Court of First Instance of Iloilo against herein petitioners Insurance Company as surety was filed, the writ itself was
Ricardo T. Salas and Maria Salas, the Philippine issued by respondent Judge on May 16, 1977, directing the
Commercial & Industrial Bank, in its capacity as Sheriff to attach the properties above-mentioned. On May
Administrator of the Testate Estate of the deceased Charles 17, 1977, the Deputy Sheriff of Iloilo levied upon the
Newton Hodges, and Avelina A. Magno, in her capacity as aforesaid properties of petitioners.
Administratrix of the Testate Estate of the deceased Linnie
Jane Hodge to annul the deed of sale of Lot No. 5 executed
by administrators of the Hodges Estate in favor of the Contending that respondent Judge gravely abused his
Spouses Ricardo T. Salas and Maria Salas and for damages. discretion in issuing the said Writ of Attachment,
The action for annulment was predicated upon the petitioners filed the present petition.
averment that Lot No. 5, being a subdivision road, is intend
for public use and cannot be sold or disposed of by the In certiorari proceedings, the cardinal rule is that the court
Hodges Estate. The claim for damages was based on the must be given the opportunity to correct itself, Thus, for the
assertion that after defendant spouses purchased Lots Nos. special civil action of certiorari to prosper, there must be no
2 and 3, they also purchased Lot No. 5 and thereafter appeal nor any plain, speedy and adequate remedy in the
"erected wooden posts, laid and plastered at the door of the ordinary course of law. Petitioners, therefore, must exhaust
house on Lot No. 3, with braces of hardwood, lumber and all available remedies in the lower court before filing a
plywood nailed to the post", thereby preventing Rosita petition for certiorari, otherwise the petition shall be held to
Bedro and Benita Yu from using the road on the afore- be premature.
mentioned lot, Lot No. 5, and that as a result of such
obstruction, private respondents Rosita Bedro and Benita In the instant case, it appears that petitioners have adequate
Yu sustained actual damages in the amount of P114,000.00, remedy under the law. They could have filed an application
plus the sum of Pl,000.00 as damages daily from June 30, with the court a quo for the discharge of the attachment for
1976 due to the stoppage in the construction of their improper or irregular issuance under section 13, Rule 57, of
commercial buildings on Lot No. 3, and moral damages in the Revised Rules of Court, which provides the following
the amount of P200,000.00.
SEC. 13. Discharge of attachment for
In their answer to the complaint, the Salas spouses, after improper or irregular issuance. The
specifically denying the material allegations in the party whose property has been attached
complaint, stated that Lot No. 5 had been registered in the may also, at any time either before or
name of the C. N. Hodges as their exclusive private after the release of the attached
property and was never subjected to any servitude or property, or before any attachment shall
easement of right of way in favor of any person; that any have been actually levied, upon
reasonable notice to the attaching of attachment (Order of March 11,
creditor, apply to the judge who Salas 1960, Annex F)
vs. Adil granted the order, or to the
judge of the court in which the action is But reversing himself again, he set
pending, for an order to discharge the aside his order of March 11, 1960
attachment on the ground that the same (Annex K, dated March 29, 1960). This
was improperly or irregularly issued. If he did apparently on Abaya's
the motion be made on affidavits on the contention that petitioner was about to
part of the party whose property has remove or dispose of his property in
been attached, but not otherwise, the order to defraud his creditors, as
attaching creditor may oppose the same examples of which disposals he pointed
by counter-affidavits or other evidence to the alleged sale of the horses and of
in addition to that on which the petitioner's office furniture. ... These
attachment was made. After hearing, averments of fraudulent disposals were
the judge shall order the discharge of controverted by petitioner who ...
the attachment if it appears that it was reiterated the defenses against
improperly or irregularly issued and the preliminary attachment which he had
defect is not cured forthwith. previously enumerated in his petition to
discharge the two orders of attachment.
Considering that petitioners have not availed of this Thus the question of fraudulent
remedy, the instant petition is premature. disposal was put in issue; and
respondent Judge, before issuing the
We deem it necessary, however, for the guidance of pre attachment anew, should have
respondent Court and of the parties, to stress herein the given the parties opportunity to prove
nature of attachment as an extraordinary provisional their respective claims or, at the very
remedy. least should have provided petitioner
with the chance to show that he had not
been disposing of his property in fraud
A preliminary attachment is a rigorous remedy, which of creditors. (citing National Coconut
exposes the debtor to humiliation and annoyance, such it Corporation v. Pecson L-4296, Feb.
should not be abused as to cause unnecessary prejudice. It 25, 1952, Villongco v. Panlilio, 6214,
is, therefore, the duty of the court, before issuing the writ, Nov. 20, 1953).
to ensure that all the requisites of the law have been
complied with; otherwise the judge acts in excess of his
jurisdiction and the so issued shall be null and void . 1 And in Garcia v. Reyes, 3 considering the allegation that the
debtors were removing or disposing of some of their
properties with intent to defraud their creditors, 'this Court
In Carpio v. Macadaeg, 2 this Court said: said that "(a)ll in all due process would seem to require that
both parties further ventilate their respective contentions in
Respondent Judge should not have a hearing that could indeed reveal the truth. Fairness would
issued the two writs of preliminary be served thereby, the demand of reason satisfied."
attachment (Annexes C and C-1) on
Abaya's simple allegation that the Considering the gravity of the allegation that herein
petitioner was about to dispose of his petitioners have removed or disposed of their properties or
property, thereby leaving no security are about to do so with intent to defraud their creditors, and
for the satisfaction of any judgment. further considering that the affidavit in support of the pre
Mere removal or disposal of property, attachment merely states such ground in general terms,
by itself, is not ground for issuance of without specific allegations of lances to show the reason
preliminary attachment, why plaintiffs believe that defendants are disposing of their
notwithstanding absence of any properties in fraud of creditors, it was incumbent upon
security for the satisfaction of any respondent Judge to give notice to petitioners and to allow
judgment against the defendant. The wherein evidence is them to present their position at a to be
removal or disposal, to justify received. Moreover, it appears from the records that private
preliminary attachment, must have respondents are claiming unliquidated damages, including
been made with intent to defraud moral damages, from petitioners. The authorities agree that
defendant's creditors. the writ of attachment is not available 'm a suit for damages
where the amount claimed is contingent or unliquidated.
Respondent Judge in fact corrected
himself. Acting on petitioner's motion We think, however, that a rule
to discharge attachment and apparently sufficient for the determination of this
believing the correctness of the grounds case has been suggested and acted
alleged therein, he set aside the orders upon, and that the remedy does not
exist where unliquidated damages were
demanded. ... In Warwick v. Chase, 23
Md 161, it is said: 'It is necessary that
the standard for ascertaining the
amount of damages claimed should not
only appear, but that it should be fixed
and certain, and in no degree dependent
on facts either speculative or Uncertain
... The general rule is, that unliquidated
damages, ... cannot be recovered by
attachment, unless the contract affords
a certain measure or standard for
ascertaining the amount of the damages
... 4
Further.
B. The defendant
FERNAN, C.J.: corporation at the
time of the
This is a petition for review on certiorari seeking to reverse execution of the
and set aside: (a) the August 29, 1980 decision of the Court aforesaid deeds of
of Appeals 1 in Special Proceedings CA-G.R. No. SP- assignment had
09972-R entitled "Impact Corporation, et al. v. Hon. reservation not to
Buenaventura Guerrero, etc., et al." annulling the order remit to plaintiff
and the writ of attachment issued by the Court of First the proceeds of the
Instance of Rizal in Civil Case No. 34617 entitled receivables
"Jardine-Manila Finance, Inc. v. Impact Corporation, et assigned to plaintiff
al." 2 and (b) the Resolution dated October 7, 1980 denying as confirmed by
herein petitioners motion for reconsideration. 3 their refusal to
remit the same to
On September 28, 1979, petitioner Jardine-Manila Finance, plaintiff although
Inc. (JARDINE) filed a complaint in the then Court of First the issuers of the
Instance (CFI) of Rizal, docketed as Civil Case No. 34617, receivables
against private respondents Impact Corporation (IMPACT), assigned to plaintiff
Ricardo de Leon and Eduardo de Leon, to collect various had already paid to
sums of money allegedly due from therein defendant defendant
IMPACT under a credit accomodation by way of a corporation their
discounting line agreement. 4 Herein private respondents obligations on said
Ricardo de Leon and Eduardo de Leon were included as receivables to the
defendants by virtue of their undertaking covered by a latter.
Surety Agreement under which they bound themselves
jointly and severally with defendant IMPACT to pay herein C. Defendants
petitioner all of IMPACT's obligations under the aforesaid Ricardo de Leon
agreement. 5 and Eduardo de
Leon who are
It was alleged that in April and May 1979, IMPACT likewise officers of
assigned its receivables to JARDINE on the condition that defendant
IMPACT was to collect them on their due dates from their corporation in order
issuers and remit the collected amounts to JARDINE and/or to elicit plaintiffs
repurchase the assigned receivables; 6 but despite the fact approval to enter
that IMPACT had collected the amounts due on said into said deeds of
receivables, it failed or refused to turn over the amounts so assignment with
collected to JARDINE. defendant
corporation,
executed the
JARDINE thus demanded payment of P 1,000,212.64, the aforesaid surety
total amount due under said various deeds of assignment, agreement (Annex
plus interest of P 16,614.64 as of September 6, 1979 and 25 L), likewise, with
% of the aforesaid amount as attorney's fees, exemplary reservation in their
damages and other expenses of litigation. minds not to honor
their obligations
under the same as
what they actually attachment, if the
did when they Honorable Court
refused to pay the should finally
obligations of adjudge that the
defendant applicant plaintiff
corporation to is not entitled
plaintiff pursuant to thereto.7
the provisions of
said surety On the basis of the foregoing allegations, the lower court
agreement. (Annex granted JARDINE's petition for the issuance of a writ of
L) preliminary attachment on October 16, 1979. 8
SO ORDERED.
The only question to decide in the present case is whether Malcolm, Abad Santos, Hull, and Imperial, JJ., concur.
or not the mere filing of an affidavit executed in due form
is sufficient to compel a judge to issue an order of
attachment.
In connection with the entire failure of the motion to show Other considerations no less potent contribute to strengthen
either a meritorious defense to the action or that the the conclusion just stated. There is no principle of law
defendant had suffered any prejudice of which the law can better settled than that after jurisdiction has once been
take notice, we may be permitted to add that in our opinion required, every act of a court of general jurisdiction shall be
a motion of this kind, which proposes to unsettle judicial presumed to have been rightly done. This rule is applied to
proceedings long ago closed, can not be considered with every judgment or decree rendered in the various stages of
favor, unless based upon grounds which appeal to the the proceedings from their initiation to their completion
conscience of the court. Public policy requires that judicial (Voorhees vs. United States Bank, 10 Pet., 314; 35 U. S.,
proceedings be upheld. The maximum here applicable is 449); and if the record is silent with respect to any fact
non quieta movere. As was once said by Judge Brewer, which must have been established before the court could
afterwards a member of the Supreme Court of the United have rightly acted, it will be presumed that such fact was
States: properly brought to its knowledge. (The Lessee of Grignon
vs. Astor, 2 How., 319; 11 L. ed., 283.)
Public policy requires that judicial proceedings
be upheld, and that titles obtained in those In making the order of sale [of the real state of a
proceedings be safe from the ruthless hand of decedent] the court are presumed to have
collateral attack. If technical defects are adjudged adjudged every question necessary to justify such
potent to destroy such titles, a judicial sale will order or decree, viz: The death of the owners; that
never realize that value of the property, for no the petitioners were his administrators; that the
prudent man will risk his money in bidding for personal estate was insufficient to pay the debts
and buying that title which he has reason to fear of the deceased; that the private acts of
may years thereafter be swept away through Assembly, as to the manner of sale, were within
some occult and not readily discoverable defect. the constitutional power of the Legislature, and
(Martin vs. Pond, 30 Fed., 15.) that all the provisions of the law as to notices
which are directory to the administrators have
In the case where that language was used an attempt was been complied with. . . . The court is not bound to
made to annul certain foreclosure proceedings on the enter upon the record the evidence on which any
ground that the affidavit upon which the order of fact was decided. (Florentine vs. Barton, 2 Wall.,
publication was based erroneously stated that the State of 210; 17 L. ed., 785.) Especially does all this
Kansas, when he was in fact residing in another State. It apply after long lapse of time.
was held that this mistake did not affect the validity of the
proceedings. Applegate vs. Lexington and Carter County Mining Co.
(117 U. S., 255) contains an instructive discussion in a case
In the preceding discussion we have assumed that the clerk analogous to that which is now before us. It there appeared
failed to send the notice by post as required by the order of that in order to foreclose a mortgage in the State of
the court. We now proceed to consider whether this is a Kentucky against a nonresident debtor it was necessary that
proper assumption; and the proposition which we propose publication should be made in a newspaper for a specified
to establish is that there is a legal presumption that the clerk period of time, also be posted at the front door of the court
performed his duty as the ministerial officer of the court, house and be published on some Sunday, immediately after
divine service, in such church as the court should direct. In performed his duty still maintains notwithstanding the
a certain action judgment had been entered against a absence from the record of the proper proof of that fact.
nonresident, after publication in pursuance of these
provisions. Many years later the validity of the proceedings In this connection it is important to bear in mind that under
was called in question in another action. It was proved from the practice prevailing in the Philippine Islands the word
the files of an ancient periodical that publication had been "record" is used in a loose and broad sense, as indicating
made in its columns as required by law; but no proof was the collective mass of papers which contain the history of
offered to show the publication of the order at the church, all the successive steps taken in a case and which are
or the posting of it at the front door of the court-house. It finally deposited in the archives of the clerk's office as a
was insisted by one of the parties that the judgment of the memorial of the litigation. It is a matter of general
court was void for lack of jurisdiction. But the Supreme information that no judgment roll, or book of final record,
Court of the United States said: is commonly kept in our courts for the purpose of recording
the pleadings and principal proceedings in actions which
The court which made the decree . . . was a court have been terminated; and in particular, no such record is
of general jurisdiction. Therefore every kept in the Court of First Instance of the city of Manila.
presumption not inconsistent with the record is to There is, indeed, a section of the Code of Civil Procedure
be indulged in favor of its jurisdiction. . . . It is to which directs that such a book of final record shall be kept;
be presumed that the court before making its but this provision has, as a matter of common knowledge,
decree took care of to see that its order for been generally ignored. The result is that in the present case
constructive service, on which its right to make we do not have the assistance of the recitals of such a
the decree depended, had been obeyed. record to enable us to pass upon the validity of this
judgment and as already stated the question must be
It is true that in this case the former judgment was the determined by examining the papers contained in the entire
subject of collateral , or indirect attack, while in the case at file.
bar the motion to vacate the judgment is direct proceeding
for relief against it. The same general presumption, But it is insisted by counsel for this motion that the
however, is indulged in favor of the judgment of a court of affidavit of Bernardo Chan y Garcia showing that upon
general jurisdiction, whether it is the subject of direct or April 4, 1908, he sent a notification through the mail
indirect attack the only difference being that in case of addressed to the defendant at Manila, Philippine Islands,
indirect attack the judgment is conclusively presumed to be should be accepted as affirmative proof that the clerk of the
valid unless the record affirmatively shows it to be void, court failed in his duty and that, instead of himself sending
while in case of direct attack the presumption in favor of its the requisite notice through the mail, he relied upon
validity may in certain cases be overcome by proof Bernardo to send it for him. We do not think that this is by
extrinsic to the record. any means a necessary inference. Of course if it had
affirmatively appeared that the clerk himself had attempted
The presumption that the clerk performed his duty and that to comply with this order and had directed the notification
the court made its decree with the knowledge that the to Manila when he should have directed it to Amoy, this
requirements of law had been complied with appear to be would be conclusive that he had failed to comply with the
amply sufficient to support the conclusion that the notice exact terms of the order; but such is not this case. That the
was sent by the clerk as required by the order. It is true that clerk of the attorneys for the plaintiff erroneously sent a
there ought to be found among the papers on file in this notification to the defendant at a mistaken address affords
cause an affidavit, as required by section 400 of the Code in our opinion very slight basis for supposing that the clerk
of Civil Procedure, showing that the order was in fact so may not have sent notice to the right address.
sent by the clerk; and no such affidavit appears. The record
is therefore silent where it ought to speak. But the very There is undoubtedly good authority to support the position
purpose of the law in recognizing these presumptions is to that when the record states the evidence or makes an
enable the court to sustain a prior judgment in the face of averment with reference to a jurisdictional fact, it will not
such an omission. If we were to hold that the judgment in be presumed that there was other or different evidence
this case is void because the proper affidavit is not present respecting the fact, or that the fact was otherwise than
in the file of papers which we call the record, the result stated. If, to give an illustration, it appears from the return
would be that in the future every title in the Islands resting of the officer that the summons was served at a particular
upon a judgment like that now before us would depend, for place or in a particular manner, it will not be presumed that
its continued security, upon the presence of such affidavit service was also made at another place or in a different
among the papers and would be liable at any moment to be manner; or if it appears that service was made upon a
destroyed by the disappearance of that piece of paper. We person other than the defendant, it will not be presumed, in
think that no court, with a proper regard for the security of the silence of the record, that it was made upon the
judicial proceedings and for the interests which have by defendant also (Galpin vs. Page, 18 Wall., 350, 366;
law been confided to the courts, would incline to favor such Settlemier vs. Sullivan, 97 U. S., 444, 449). While we
a conclusion. In our opinion the proper course in a case of believe that these propositions are entirely correct as
this kind is to hold that the legal presumption that the clerk applied to the case where the person making the return is
the officer who is by law required to make the return, we
do not think that it is properly applicable where, as in the describing with much fullness the various steps to be taken
present case, the affidavit was made by a person who, so in the conduct of such proceedings. To this end it defines
far as the provisions of law are concerned, was a mere with precision the method of beginning, conducting, and
intermeddler. concluding the civil action of whatever species; and by
section 795 of the same Code it is declared that the
The last question of importance which we propose to procedure in all civil action shall be in accordance with the
consider is whether a motion in the cause is admissible as a provisions of this Code. We are therefore of the opinion
proceeding to obtain relief in such a case as this. If the that the remedies prescribed in sections 113 and 513 are
motion prevails the judgment of July 2, 1908, and all exclusive of all others, so far as relates to the opening and
subsequent proceedings will be set aside, and the litigation continuation of a litigation which has been once concluded.
will be renewed, proceeding again from the date mentioned
as if the progress of the action had not been interrupted. The motion in the present case does not conform to the
The proponent of the motion does not ask the favor of requirements of either of these provisions; and the
being permitted to interpose a defense. His purpose is consequence is that in our opinion the action of the Court
merely to annul the effective judgment of the court, to the of First Instance in dismissing the motion was proper.
end that the litigation may again resume its regular course.
If the question were admittedly one relating merely to an
There is only one section of the Code of Civil Procedure irregularity of procedure, we cannot suppose that this
which expressly recognizes the authority of a Court of First proceeding would have taken the form of a motion in the
Instance to set aside a final judgment and permit a renewal cause, since it is clear that, if based on such an error, the
of the litigation in the same cause. This is as follows: came to late for relief in the Court of First Instance. But as
we have already seen, the motion attacks the judgment of
SEC. 113. Upon such terms as may be just the the court as void for want of jurisdiction over the
court may relieve a party or legal representative defendant. The idea underlying the motion therefore is that
from the judgment, order, or other proceeding inasmuch as the judgment is a nullity it can be attacked in
taken against him through his mistake, any way and at any time. If the judgment were in fact void
inadvertence, surprise, or excusable neglect; upon its face, that is, if it were shown to be a nullity by
Provided, That application thereof be made virtue of its own recitals, there might possibly be something
within a reasonable time, but in no case in this. Where a judgment or judicial order is void in this
exceeding six months after such judgment, order, sense it may be said to be a lawless thing, which can be
or proceeding was taken. treated as an outlaw and slain at sight, or ignored wherever
and whenever it exhibits its head.
An additional remedy by petition to the Supreme Court is
supplied by section 513 of the same Code. The first But the judgment in question is not void in any such sense.
paragraph of this section, in so far as pertinent to this It is entirely regular in form, and the alleged defect is one
discussion, provides as follows: which is not apparent upon its face. It follows that even if
the judgment could be shown to be void for want of
jurisdiction, or for lack of due process of law, the party
When a judgment is rendered by a Court of First aggrieved thereby is bound to resort to some appropriate
Instance upon default, and a party thereto is proceeding to obtain relief. Under accepted principles of
unjustly deprived of a hearing by fraud, accident, law and practice, long recognized in American courts, a
mistake or excusable negligence, and the Court of proper remedy in such case, after the time for appeal or
First Instance which rendered the judgment has review has passed, is for the aggrieved party to bring an
finally adjourned so that no adequate remedy action to enjoin the judgment, if not already carried into
exists in that court, the party so deprived of a effect; or if the property has already been disposed of he
hearing may present his petition to the Supreme may institute suit to recover it. In every situation of this
Court within sixty days after he first learns of the character an appropriate remedy is at hand; and if property
rendition of such judgment, and not thereafter, has been taken without due process, the law concedes due
setting forth the facts and praying to have process to recover it. We accordingly old that, assuming the
judgment set aside. . . . judgment to have been void as alleged by the proponent of
this motion, the proper remedy was by an original
It is evident that the proceeding contemplated in this proceeding and not by motion in the cause. As we have
section is intended to supplement the remedy provided by already seen our Code of Civil Procedure defines the
section 113; and we believe the conclusion irresistible that conditions under which relief against a judgment may be
there is no other means recognized by law whereby a productive of conclusion for this court to recognize such a
defeated party can, by a proceeding in the same cause, proceeding as proper under conditions different from those
procure a judgment to be set aside, with a view to the defined by law. Upon the point of procedure here involved,
renewal of the litigation. we refer to the case of People vs. Harrison (84 Cal., 607)
wherein it was held that a motion will not lie to vacate a
The Code of Civil Procedure purports to be a complete judgment after the lapse of the time limited by statute if the
system of practice in civil causes, and it contains provisions judgment is not void on its face; and in all cases, after the
lapse of the time limited by statute if the judgment is not
void on its face; and all cases, after the lapse of such time,
when an attempt is made to vacate the judgment by a
proceeding in court for that purpose an action regularly
brought is preferable, and should be required. It will be
noted taken verbatim from the California Code (sec. 473).
4. Defendant AB Charles Thorburn & Thereafter, on February 17, 1978, petitioner filed before the
Co., etc. shall be notified of the Order Court of First Instance of Rizal a complaint with a prayer
of this Court together with a copy of for a writ of preliminary attachment for the recovery of
the amended complaint and the professional fees and reimbursement of expenses against
complaint in intervention, thru the Baroom whom it alleged to have represented in Civil Case
Department of Foreign Affairs, and the No. 105048, CFI, Manila. The case was docketed as Civil
Philippine Embassy at Jeddah, Saudi Case No. 28710 and the same was assigned to Branch XXI
Arabia. Proof of Service shall be presided over by Judge Gregorio C. Pineda.
submitted to this Court. After such time
afforded the defendant, in order to By virtue of the order dated February 28, 1978 issued by
enable them to answer or appear in this Judge Pineda in the new case, petitioner obtained a writ of
Court or make any claim whatsoever, preliminary attachment against Baroom's alleged cargoes
and still they fail to make any which is the subject matter in Civil Case No. 105048.
manifestation, hearing of this case shall
resume regarding the final disposition Meanwhile, in Civil Case No. 105048, on August 2, 1978,
of the proceeds to all concerned. respondent Judge gave Attys. Quasha and Valmonte ten
(10) days from receipt of order within which to explain
On June 27, 1977, respondent Judge approved tentatively why they should not be held in contempt of court for filing
the sale of the cargo to Bengzon's Industries. This Order a case entitled "Quasha Asperilla Ancheta Valmonte Pea
was followed by another dated July 19, 1977, approving the and Marcos vs. AlSayed Abdullah Mohammed Baroom"
Deed of Absolute Sale of the cargo. 1 docketed as Civil Case No. 28710 in the Court of First
Instance of Rizal, Branch XXI, where they obtained a writ
On August 15, 1977, petitioner law firm filed with of preliminary attachment over the cargoes, which they
respondent Judge a special appearance for defendant knew to be subject matter of Civil Case No. 105048
Ahmed Baroom contesting the Court's jurisdiction over pending before his sala." 5 A compliance with said order
Baroom's person and property and a Motion to Dismiss on was filed on August 24, 1978, with petitioner alleging that
the ground that the Court had not acquired jurisdiction over their cause of action against Baroom was for payment of
Baroom's 'person or property aboard the MV San Vicente. 2 professional fees and reimbursement of expenses while
Case No. 105048 before Judge Juan was for alleged unpaid
charter hire fees.
On August 25, 1978, respondent Judge issued an order assigned its interests and rights in the proceeds of the sale
approving the sale of the cargo in question to Apollo Kokin of the subject cargoes to Sierra Madre which the latter
Trading Co., Ltd. In accordance with the earlier order of accepted was approved by the respondent court in its
April 28, 1977, respondent Judge directed the deposit of the decision of November 3, 1978. An amended petition was
sale proceeds with a banking institution to be approved by thus filed in this Court impleading Sierra Madre as partly
the Court and its disposition only on orders of the Court. 6 respondent in his case with prayer that a writ of
garnishment be issued on the proceeds of the sale of the
On September 8, 1978, Filcar filed with the Court of First cargoes which are in the possession of Sierra Madre, and an
Instance of Rizal an urgent omnibus motion to be allowed order be issued directing Sierra Madre and all those to
to appear and to dismiss the case and to lift the writ of whom such proceeds may subsequently be reassigned to
preliminary attachment and set aside the order to auction deliver to petitioner such portion of the proceeds of the sale
the cargo, attaching thereto the order of respondent Judge as would satisfy the attorney's lien in the interest of justice.
dated August 25, 1978, approving the sale in favor of
Apollo Kokin Trading Co., Ltd. of the subject cargo, the Coming back to the omnibus motion of Filcar for the lifting
proceeds of which after deducting all expenses shall be of the preliminary attachment issued by the Court of First
deposited with the court. Instance of Rizal, the said court on December 7, 1978
dismissed petitioner's case and lifted the preliminary
Thus, petitioner, on October 23, 1978, filed before this attachment issued therein. Upon motion for reconsideration
Court the instant petition. Petitioner assails the order of dated April 7, 1979, the said preliminary attachment was
August 25, 1978, not the earlier order of April 28, 1977 reinstated by the Court of First Instance of Rizal in its order
approving the sale in favor of Apollo Kokin Trading Co., dated July 5, 1979. 8
Ltd. of the questioned cargo for having been issued in
grave abuse of discretion considering that subject cargo After several pleading were filed in this Court, We gave
was allegedly earlier attached by the Court of First Instance due course to the petition. 9
of Rizal.
Petitioner contends that respondent court did not acquire
Without giving due course to the petition and pending the jurisdiction neither over any of the defendants as they have
filing of comments by respondents, this Court issued on not voluntarily submitted themselves to the jurisdiction of
October 24, 1978 a temporary restraining order, respondent court, nor over the res, since there had been no
seizure of the property under a legal process, as by a writ of
enjoining respondents to immediately attachment or other process of similar effect. The instant
cease and desist from taking, case is allegedly neither a proceeding in rem as would place
unloading, transferring, conveying, the property under its potential power citing the leading
transporting or disposing of the cargoes case of Banco Espaol v. Palanca 10 which held:
or any part thereof aboard the MC San
Vicente and Dong Myung, * or from Jurisdiction over the property which is
taking the cargoes away, subject matter the subject of litigation may result
of Civil Case No. 105048 entitled either from a seizure of the property
'Filipinas Carriers, Inc. vs. AB Charles under legal process, whereby it is
Thorburn & Co., et al.' of the Court of brought into the actual custody of the
First Instance of Manila, Branch X." 7 law, or it may result from the institution
of legal proceedings wherein under
On October 30, 1978, petitioner filed a manifestation and special provisions of law, the power of
motion informing this Court that notwithstanding the the court over the property is
restraining order, the MV Don Myung, with the cargo recognized and made effective. In the
aboard left surreptitiously at midnight of October 24, 1978 latter case the property, though at all
without the assistance of any pilot in violation of Harbor times within the potential power of the
rules. The goods were then allegedly sold for US court, may never be taken into actual
$220,200.43 under irrevocable letters of credit issued by custody at all. An illustration of the
the Fuji Bank of Osaka, Japan. Petitioner, thus, prayed that jurisdiction acquired by actual seizure
several persons, namely, Mr. Federico Tabora, Jr., is found in attachment proceedings,
President of Filipinas Carriers, Inc., Mr. Gregorio where the property is seized at the
Gatchalian, allegedly operations manager of the American beginning of the action, or some
Steamship Agencies, Inc. being the agent representing the subsequent stage of its progress and
MV Dong Myung, Lt. JG Godofredo Orcullo of the held to abide the final event of the
Operations Center and Seaman 1st Class Avelino Lontoc of litigation. An illustration of what we
the Philippine Coast Guard be cited for contempt. term potential jurisdiction over
the res is found in the proceeding to
register the title of land under our
In the meanwhile, a compromise agreement dated October system for the registration of land. Here
16, 1978 and filed on November 2, 1978 wherein Filcar the court, without taking actual
physical control over the property The foregoing ruling was applied in Mabanag vs.
assumes, at the instance of some person Ganimore: 12
claiming to be the owner, to exercise a
jurisdiction in rem over the property As a general rule, when the defendant
and to adjudicate the title in favor of is not residing and is not found in the
the petitioner against all the world. Philippines, the Philippine courts
cannot try any case against him because
Claiming that it was the Court of First Instance of Pasig of impossibility of acquiring
that first acquired jurisdiction over the res to the exclusion jurisdiction over his person, unless he
of respondent court, petitioner insists that the latter court's voluntarily appears in court. But when
act is undue interference which cannot be countenanced. the action ... is intended to seize or
dispose of any property, real or
There is no pretense that respondent court has jurisdiction personal, of the defendant, located in
over the cause of action. It is much too obvious to merit a the Philippines, it may validly be tried
fuller discussion. Suffice it to say that an action based upon by the Philippine courts, for then, they
an oral contract of transportation of goods by water is an have jurisdiction over the res, i.e. ... the
action in admiralty which comes under the original and property of the defendant, and their
exclusive jurisdiction of the Court of First Instance jurisdiction over the person of the non-
irrespective of the value of the cargo. 11 resident is not essential ... . (Citing I
Moran's Comments on the Rules of
Court, 2d Ed., 105).
As to the person of Baroom, it is to be conceded that at the
initial stage of the proceeding in the Court of First Instance
of Manila prior to the issuance of the order of April 28, At any rate, defendant Baroom filed later, aside from a
1977 directing the sale of the property and petitioner's motion to dismiss, an answer with counterclaim praying
firing of various pleadings, said court did not have that plaintiff be directed to deliver the cargoes of defendant
jurisdiction over Baroom. Baroom was a non-resident alien Baroom to Jeddah and to pay damages, etc. and a cross-
and he was beyond the reach of the court's legal processes. claim against Sierra Madre, thereby abandoning any
But since the action is brought principally for the question on jurisdiction over the person and submitting
enforcement of maritime lien against the property of himself to the jurisdiction of the court. In Tenchavez vs.
defendants who failed to pay the charter hire fee, and Escao, 13 this Court quoted with approval the ruling
therefore the same is in the nature and character of a in Merchant's Heat and Light Co. vs. Clow & Sons, 204 U.
proceeding quasi in rem, jurisdiction over defendant S. 286, 51 Law Ed. 488:
Baroom is not essential. An action quasi in rem has been
defined as "an action between parties where the direct We assume that the defendant lost no
object is to reach and dispose of property owned by them or rights by pleading to the merits, as
of some interest therein." As such the properties allegedly required, after saving its rights.
owned by him are primarily made liable. In elucidating the Harkness vs. Hyde, 98 U.S. 476, 25 L.
characteristic of a proceeding where a non-resident ed. 237; Southern P. Co. vs. Denton,
defendant fails to appear, this Court in the aforecited 146 U.S. 202, 36 L. ed. 943, 13 Sup.
leading case of Banco Espaol Filipino v. Palanca said: Ct. Rep. 44. But by setting up its
counterclaim the defendant became a
If however, the defendant is a non- plaintiff in its turn, invoked the
resident and, remaining beyond the jurisdiction of the court in same action,
range of the personal process of the and, by invoking submitted to it. It is
court, refuses to come in voluntarily, true that the counterclaim seems to
the court never acquires jurisdiction have arisen wholly out of the same
over the person at all. Here the property transaction that the plaintiff sued upon,
itself is in fact the sole thing which is and so to have been in recoupment
impleaded and is the responsible object rather than in set-off proper. But, even
which is the subject of the exercise of at common law, since the doctrine has
judicial power. It follows that the been developed, as demand in
jurisdiction of the court in such case is recoupment is recognized as a cross
based exclusively on the power which, demand, as distinguished from a
under the law, it possesses over the defense. Therefore, although there has
property; and any discussion relative to been a difference of opinion as to
the jurisdiction of the court over the whether a defendant, by pleading it, is
person of the defendant is entirely apart concluded by the judgment from
from the case. bringing a subsequent suit for the
residue of his claim, a judgment in his
favor being impossible at common law,
the authorities agree that he is not
concluded by the judgment if he does an attachment. Moreover, since the property subject of the
not plead his cross demand, and that action for the enforcement of the maritime liens was
whether he shall do so or not is left already in the possession of private respondent, there is no
wholly to his choice. Davis vs. Hedges, need for seizure for the court to obtain jurisdiction over the
L.R. 6 Q.B. 687; Mondel vs. Steel, 8 rest.
Mees & W. 858, 872; O'Connor vs.
Varney, 10 Gray, 231. This single fact Where a party in actual possession of
shows that the defendant, if he elects to the res subject to the lien is before the
sue upon his claim in the action against court, the res is within the jurisdiction
him, assumes the position of an actor of the court for the enforcement of the
and must take the consequence. The lien A suit may be maintained to
right to do so is of modern growth, and foreclose a lien on property within the
is merely a convenience that saves jurisdiction of the court, although some
bringing another suit, not a necessity of interest or claim therein is held by a
the defense. non-resident. 15
In the aforecited case, the Court explains that the rule is The other argument posed by petitioner to challenge
such because "it cannot look with favor upon a party respondents' right over the property is that there is no
adopting not merely inconsistent, but actually privity of contract between Baroom and respondents. It
contradictory; positions in one and the same suit, claiming avers that Baroom is not merely the agent of Thorburn but
that a court has no jurisdiction to render judgment against himself the owner of some of the cargoes and whose
it, but has such jurisdiction to give a decision its favor. 14 contract to ship the same is with sub-charterer Thorburn. It
avers further that neither Thorburn could attach a lien on
It may be noted that if the defendant voluntarily appears, the property since Baroom had allegedly paid fully for the
the action becomes as to him a personal action and is shipment even before the vessel sailed, as evidenced by the
conducted as such. Even then, the court does not lose its clean freight pre-paid bills of lading.
jurisdiction over the res, assuming that it has indeed
jurisdiction over the res. The res still remains under its Claiming right over the cargo to answer for the unpaid
control and disposition. professional fees, petitioner submits to this Court the
required written authority from Baroom claiming that due
As regards jurisdiction over the res, We hold that to snag in communication and unreliability of the mailing
respondent acquires jurisdiction over it. Where a property system it did not receive the documents from its client on
is burdened by a lien, a writ of attachment is no longer time.
necessary in order that jurisdiction over the property may
be obtained by the court. In the same cited case by The foregoing entails determination of facts. It would be
petitioner, in the Banco Espaol case, it was clarified: highly irregular if this Court would have to resolve those
questions, this Court not being a trier of facts. The several
In an ordinary attachment proceeding, documents mentioned by petitioner and attached to its
if the defendant is not personally pleadings before this Court were never presented before the
served, the preliminary seizure is to be lower court. After Baroom had abandoned his defense
considered necessary in order to confer which created the presumption that he had no defense, that
jurisdiction upon the court. In this case he is not the owner of the cargo, petitioner should have
the lien on the property is acquired by pursued the same argument before respondent court in
seizure; and the purpose of the claiming the alleged professional fee. This is in accordance
proceeding is to subject the property to with Article 1177 of the New Civil Code which provides:
that lien. If a lien already exists,
whether created by mortgage, contract, Art. 1177. The creditors having
or statute, the preliminary seizure is not pursued the property in possession of
necessary, and the court proceeds to the debtor to satisfy their claims may
enforce such lien in the manner exercise all the rights and bring all the
provided by law precisely as though the actions of the latter for the same
property had been seized upon purpose, save those which are inherent
attachment. (Roller v. Holly, 176 U.S. in his person, they may also impugn the
398, 405; 44 L. ed. 520). acts which the debtor may have done to
defraud them.
The reason for the rule is obvious. An attachment
proceeding is for the purpose of creating a lien on the Indeed, petitioner should have maintained its action in
property to serve as security for the payment of the respondent's court. After all, a court which has in its
creditors' claim. Hence, where a lien already exists, as in possession, control or equivalent dominion, property or
this case a maritime lien, the same is already equivalent to funds involved in litigation may exercise exclusive
jurisdiction over such property or funds to determine the he was the agent of Charles Thorburn
rights therein, such as questions respecting the title, and the three (3) consignee banks, the
possession or control, management and disposition thereof application was rejected due to conflict
and another court of concurrent or coordinate jurisdiction of interest.
cannot interfere with such possession or control. 16 The
rights to be determined by said court necessarily include 4. The pre-paid freight representation
the attorney's fees due to the lawyers who represented the of Baroom is false because the
parties. Significantly, the lower court which undoubtedly condition of the L/C issued by the 3
has in its favor the presumption of regularity and which consignee banks provides a C/F
was never restrained by this Court from proceeding with arrangement which means payment of
the ease issued an order dated January 25, 1979 17 making the goods, insurance and freight can
the following findings of fact: only be made upon physical delivery of
the goods in Jeddah.
1. Thorburn fails to pay the freight so
that respondent Filcar had the right to 5. Baroom intervened in the case
impose its lien on the cargo including (before respondent court) using the
sub-freights. Quasha law office. He later withdrew
upon knowing he has no defense. In
Paragraph 16 of the fact, he did not even give Quasha
time charter written authority to appear for him as
contract provides: his lawyer.
3. Baroom appealed to Filcar to be its Petitioner may not enforce its attorney's lien, which
agent, but when it was discovered that accordingly is based on Section 37 of Rule 138 which
provides:
Sec. 37. Attorney's lien. An attorney of the petition had been loaded into the M.V. Dong Myung,
shall have a lien upon the funds, of which this Court has no jurisdiction being a foreign
documents and papers of his client vessel. When the vessel sailed and the cargoes eventually
which have lawfully come into his sold, everything became fait accompli and the case before
possession and may retain the same Us moot and academic.
until his lawful fees and disbursements
have been paid and may apply such Petitioner prays for the garnishment of the proceeds, but to
funds to the satisfaction thereof. He allow the same, there must first be a determination of the
shall also have a lien to the same extent ownership of the cargo. Again, We say We are not in a
upon all judgments for the payment of position to do so. Petitioner failed to file motion for
money, and executions issued in reconsideration of the order of August 25, 1978 approving
pursuance of such judgments, which he the sale of the cargo, and it abandoned its own case before
has secured in a litigation of his client, respondent Judge. The result of its negligence in allowing
from and after the time when he shall considerable period to lapse before claiming right over the
have caused a statement's of his claim cargo, and resorting to injunctive relief must be borne by it.
of such lien to be entered upon the Petitioner is not entitled to any relief and the instant
records of the court rendering such petition must be dismissed. We shall also dismiss
judgment, or issuing such execution, petitioner's charge of contempt against respondent since as
and shad have caused written notice We said before, before the temporary restraining or order
thereof to be delivered to his client and could be served everything was already fait accompli .
to the adverse party; and he shall have
the same right and power over such
judgments and executions as his client Likewise, We also dismiss the respondents' charge against
would have to enforce his lien and petitioner for direct contempt for allegedly omitting
secure the payment of his just fees and material facts vital to the fun appreciation of this Court. In
disbursements. De Midgely vs. Ferandos, 18 this Court ruled that such
tactic is generally tolerated because understandably lawyers
are apt to slant the presentation of their clients' case so that
Based on the foregoing provision, the liens for attorney's they would have favorable judgments. "Courts are not
fees and expenses apply only on the funds or documents of deceived by the exaggerations and distortions in a counsel's
clients which lawfully come to the possession of the lopsided submission of his client's case especially where, as
counsel (called retaining lien) and to all judgments secured in this case, the alert opposing counsel calls the court's
by the counsel (called charging lien). In his manifestation attention to that fact. "
and motion before respondent Judge, petitioner is claiming
for his charging lien But it should be noted that at the time
of its filing, the orders of April 27, 1977 ordering the sale Indeed, "contempt of court presupposes a contumacious
of the cargoes and July 19, 1977 approving the Deed of attitude, a flouting of arrogant belligerence, a defiance of
Sale of cargoes were already in existence and both were in the court. 19 It is an offense against the authority and
fact in favor of private respondent. It is curious to note that dignity of the court.
petitioner never questioned said orders on appeal or by a
special civil action. Petitioner's client in fact even WHEREFORE, the petition is hereby dismissed.
abandoned its case. Hence, having no favorable judgment
that could be anticipated, the charging lien has no leg to SO ORDERED.
stand on. Perhaps because it was aware of its predicament
that petitioner filed an independent action for recovery of
its professional fees and for reimbursement of expenses Makasiar (Chairman), Aquino, Concepcion, Jr. and
which would have been proper, except that the ownership Guerrero, JJ., concur.
of the property sought to be attached was questionable and
the same was already sold by respondent court. But just as
We had said before, petitioner should have filed its claim
for professional fees in respondent's court for said court has
the exclusive jurisdiction to determine the real owner of the
cargoes. We hasten to add, however, that the action should
not be for a charging lien, but a simple complaint in
intervention for recovery of professional services and
reimbursement of expenses, thus avoiding multiplicity of
suits.
Isaias P. Dicdican and Sylva G. Aguirre-Paderanga for Respondent Aboitiz filed an urgent ex parte motion,
Aboitiz & Co., Inc. praying for the stay of the July 6, 1982 Order for a period
of 15 days for it to be able to appeal the order. The motion
was favorably acted upon.
Undaunted, respondent Aboitiz filed a second motion for The complaint in Civil Case No. CEB-1186 alleged that
reconsideration with a prayer that the dispositive portion of petitioner Eleazar Adlawan (defendant therein) was
the decision be clarified. It asserted that because the writ of awarded a contract for the construction of the Lasang River
preliminary attachment was different from the writ of Irrigation Project by the National Irrigation Administration
replevin, we should rule that the property subject of the and that respondent Aboitiz (plaintiff therein) loaned him
latter writ should remain in custodia legis of the court money and equipment, which indebtedness as of June 30,
issuing the said writ. 1983 totalled P5,370,672.08. Paragraph 15 of the complaint
is similarly worded as paragraph 16 of the complaint in
Civil Case No. CEB-1185.
In the Resolution dated September 10, 1990, the Third
Division stated that "the properties to be returned to
petitioner are only those held by private respondent Civil Case No. CEB-1185 was raffled to the Regional Trial
(Aboitiz) by virtue of the writ of attachment which has Court, Branch 6, presided by respondent Judge Ramon Am.
been declared non-existent." Accordingly, the dispositive Torres. On September 14, 1983, respondent Judge ordered
portion of the April 3, 1990 decision of the Third Division the issuance of a writ of attachment upon respondent
of this Court was modified to read as follows: Aboitiz' filing of a bond of P5,000,000.00. Similarly, in
Civil Case No. CEB-1186, which was raffled to Branch 23,
presiding Judge Emilio A. Jacinto ordered the issuance of a
WHEREFORE, in view of the writ of attachment upon the filing of a bond of
foregoing, this Court rules that the P2,500,000.00. Accordingly, in Civil Case No. CEB-1185,
properties in the custody of the private the Acting Provincial Sheriff of Cebu issued separate writs
respondent Aboitiz & Company by dated September 26, 1983 addressed to the Sheriffs of
virtue of the writ of attachment issued Cebu, Davao and Metro Manila. No writ of preliminary
in Civil Case No. R-21761 be returned attachment was, however, issued in Civil Case No. CEB-
to the petitioner, but properties in the 1186.
custody of the private respondent by
virtue of the writ of replevin issued in
Civil Case No. 619-L be continued Petitioners then filed in Civil Cases Nos. CEB-1185 and
in custodia legis of said court pending CEB-1186 urgent motions to hold in abeyance the
litigation therein. enforcement of the writs of attachments. They alleged in
the main that since their property had been previously
attached and said attachment was being questioned before
The Decision in G.R. No. 63225 having become final and the Supreme Court in G.R. No. 63225, the filing of the two
executory, entry of judgment was made on November 15, cases, as well as the issuance of the writs of attachment,
1990. This should have terminated the controversy between constituted undue interference with the processes of this
petitioners and respondent Aboitiz insofar as the Supreme court in the then pending petition involving the same
Court was concerned, but that was not to be. On September property.
9, 1983 respondent Aboitiz filed against petitioners two
Upon motion of respondent Aboitiz, Branch 23 issued on Petitioners contended that in Civil Case No. 21761, Branch
October 13, 1983, an order directing the transfer to Branch 11 had ruled that the loan for which the mortgage was
6 of Civil Case No. CEB-1186 for consolidation with Civil executed was contracted in good faith, as it was necessary
Case No. CEB-1185. for them to continue their business operations even after
respondent Aboitiz had stopped giving them financial aid.
Meanwhile, in its comment on petitioners' motion to
withhold the enforcement of the writs of attachment, Petitioners also contended that respondent Judge exceeded
respondent Aboitiz alleged that the voluntary dismissal of his jurisdiction when he issued the Order of December 12,
Civil Case No. R-21761 under Section 1, Rule 17 of the 1983, without first hearing the parties on the motion for
Revised Rules of Court was without prejudice to the attachment and the motion to dissolve the attachment.
institution of another action based on the same subject Moreover, they argued that respondent Judge gravely
matter. It averred that the issuance of the writ of attachment abused his discretion in proceeding with the case,
was justified because petitioners were intending to defraud notwithstanding that his attention had been called with
respondent Aboitiz by mortgaging 11 parcels of land to the regard to the pendency of G.R. No. 63225 in this Court.
Philippine Commercial and Industrial Bank (PCIB) in
consideration of the loan of P1,100,000.00, thereby making As prayed for by petitioners, we issued a temporary
PCIB a preferred creditor to the prejudice of respondent restraining order on January 6, 1984 "enjoining the
Aboitiz, which had an exposure amounting to respondents from enforcing or implementing the writs of
P13,430,259.14. preliminary attachment against the property of petitioners,
all dated September 26, 1983 and issued in Civil Cases
Petitioners then filed a rejoinder to said comment, Nos. CEB 1185 and 1186" (Rollo, p. 118).
contending that since the property subject of the writ of
attachment have earlier been attached or replevied, the II
same property were under custodia legis and therefore
could not be the subject of other writs of attachment.
The resolution of this case centers on the issue of the
legality of the writ of attachment issued by respondent
On December 12, 1983, respondent Judge issued an order Judge in the consolidated cases for collection of sums of
finding no merit in petitioners' motion for reconsideration money.
and directing the sheriffs of Cebu, Davao and Metro Manila
"to proceed with the enforcement and implementation of
the writs of preliminary attachment." Respondent Judge The affidavit submitted by respondent Aboitiz in support of
ruled that the writs of attachment were issued on the basis its prayer for the writ of attachment does not meet the
of the supporting affidavits alleging that petitioner had requirements of Rule 57 of the Revised Rules of Court
removed or disposed of their property with intent to regarding the allegations on impending fraudulent removal,
defraud respondent Aboitiz (Rollo, pp. 109-113). concealment and disposition of defendant's property. As
held in Carpio v. Macadaeg, 9 SCRA 552 (1963), to justify
a preliminary attachment, the removal or disposal must
On December 15, petitioners filed an ex parte motion have been made with intent to defraud defendant's
praying: (1) that the December 12, 1983 Order be set for creditors. Proof of fraud is mandated by paragraphs (d) and
hearing; (2) that they be given 15 days within which to (e) of Section 1, Rule 57 of the Revised Rules of Court on
either file a motion for reconsideration or elevate the matter the grounds upon which attachment may issue. Thus, the
to this Court or the then Intermediate Appellate Court; and factual basis on defendant's intent to defraud must be
(3) that within the same 15-day period the implementation clearly alleged in the affidavit in support of the prayer for
or enforcement of the writs of attachment be held in the writ of attachment if not so specifically alleged in the
abeyance. verified complaint. The affidavit submitted by respondent
Aboitiz states:
On the same day, respondent Judge issued an order holding
in abeyance the enforcement of the writs of preliminary REPUBLIC OF THE PHILIPPINES
attachment in order to afford petitioners an opportunity to CITY OF CEBU ...............) S.S.
seek their other remedies (Rollo, p. 116).
I, ROMAN S. RONQUILLO, of legal
On December 27, petitioners filed the instant petition age, married and a resident of Cebu
for certiorari and mandamus. They alleged that respondent City, after being sworn in accordance
Judge gravely abused his discretion in ordering the issuance with law, hereby depose and say:
of the writs of preliminary attachment inasmuch as the real
estate mortgage executed by them in favor of PCIB did not
constitute fraudulent removal, concealment or disposition That I am the Vice-President of the
of property. They argued that granting the mortgage plaintiff corporation in the above-
constituted removal or disposition of property, it was entitled case;
not per se a ground for attachment lacking proof of intent
to defraud the creditors of the defendant.
That a sufficient cause of action exists
against the defendants named therein
because the said defendants are
indebted to the plaintiffs in the amount
of P13,430,259.14 exclusive of
interests thereon and damages claimed;
SO ORDERED.
August 30,1982 issued by the Manila Court in Civil Case
No. 82-11611.
THE CONSOLIDATED BANK and TRUST
CORPORATION (SOLIDBANK), petitioner, Accordingly, on September 7, 1982, the Registrar of Deeds
vs. of Malolos, Bulacan, pursuant to the request of the Manila
HON. INTERMEDIATE APPELLATE COURT, Sheriff, inscribed and annotated the Notices of Levy Upon
GOLDEN STAR INDUSTRIAL CORPORATION, Real Property at the back of Transfer Certificates of Title
NICOS INDUSTRIAL CORPORATION and THE Nos. T-210581 (T-32.505 M) and T-210580 (T-32.504 M).
PROVINCIAL SHERIFF OF BULACAN, respondents.
Pursuant to the foregoing ng inscription and annotations,
C.M. Delos Reyes and Associates for petitioner. guards were deputized by the Manila Sheriff to secure the
premises of the two attached realties.
Magtanggol C. Gunigundo and Fajardo Law office for
respondents. A year later, however, on July 11, 1983, the attached
properties which had been mortgaged by NICOS to the
United Coconut Planters Bank (UCPB) on March 11, 1982,
were extrajudicially foreclosed by the latter. As the highest
bidder therein, a certificate of sale was issued to it by the
GUTIERREZ, JR., J.: Sheriff of Bulacan over the subject realties including the
buildings and improvements thereon.
The basic issue for resolution in this petition for review of
the December 13, 1985 decision of the Intermediate Surprisingly, two transactions occurred soon thereafter,
Appellate Court, now the Court of Appeals, as well as the both on August 29, 1983. First, UCPB sold all of its rights,
resolution of March 13, 1986 denying the motion for interests, and participation over the properties in question
reconsideration, is whether or not an attaching creditor to a certain Manuel Go; Second, Manuel Go sold all the
acquires the right of redemption of a debtor over the rights he acquired from UCPB over the same lots on that
attached properties of the latter which are subsequently very same day to private respondent Golden Star Industrial
extrajudicially foreclosed by third parties. Corporation (GOLDEN STAR).
Briefly, the facts are as follows: Originally, petitioner Barely a month later, on October 5, 1983, respondent
Consolidated Bank and Trust Corporation (SOLIDBANK) NICOS, though fully aware that it still had the right to
loaned private respondent NICOS Industrial Corporation redeem the auctioned properties within the one year period
(NICOS) sums of money in the total amount of FOUR of redemption from July 11, 1983, suddenly executed a
MILLION SEVENTY SIX THOUSAND FIVE document entitled "Waiver of Right of Redemption" in
HUNDRED EIGHTEEN AND 64/100 PESOS favor of respondent GOLDEN STAR.
(P4,076,518.64).
On September 15, 1983, GOLDEN STAR filed a petition
Subsequently, NICOS failed to pay back the loan for the issuance of a writ of possession over the subject
prompting SOLIDBANK to file a collection case before the realties before the Regional Trial Court, Branch VI of
Court of First Instance of Manila, Branch XXIX. The case Malolos, Bulacan.
was docketed as Civil Case No. 82-11611.
On November 4, 1983, the Malolos Court granted
On August 30, 1982, the court in the aforecited case issued GOLDEN STAR's petition for a writ of possession and
an order of attachment " ... upon the rights, interests and issued the writ. In accordance with these orders, armed men
participation of which defendants NICOS Industrial of GOLDEN STAR forcibly took over the possession of
Corporation ... may have in Transfer Certificate of Title the properties in dispute from the guards deputized by the
No. T-210581 (T-32.505 M) and Transfer Certificate of Sheriff of Manila to secure the premises.
Title No. T-10580 (T-32.504 M) (Annexes "B", "B-1", "B-
2" and "B-3" of petition).
Thus on November 21, 1983, petitioner SOLIDBANK, on
the strength of its prior attachment over the lands in
On September 1, 1982, pursuant to the writ of attachment question filed with the Malolos court an omnibus motion to
issued by the Court and upon petitioner's posting of annul the writ of possession issued to GOLDEN STAR and
sufficient bond, the Sheriff of Manila levied and attached to punish for contempt of court the persons who
the two real properties described by the foregoing order of implemented the writ of possession with the use of force
attachment, including the buildings and other and intimidation.
improvements thereon. Afterwards, the Sheriff sent
separate Notices of Levy Upon Realty to the Registrar of
Deeds of Malolos, Bulacan, dated September 1, 1982 The respondents NICOS and GOLDEN STAR, filed
requesting him "to make the proper annotation in the books oppositions to the foregoing omnibus motion, the former on
of your office" by virtue of the order of attachment dated the basis of the waiver of its right of redemption to
GOLDEN STAR, and the latter on its alleged ignorance We rule in the affirmative on the following grounds:
that the lands in question were under custodia legis, having
been attached by the Sheriff of Manila. First of all, the records show (specifically Annexes "B,"
"B-1" to "B-3" of the petition) that on September 1, 1982,
On June 9, 1984, the Malolos Court issued an order the Sheriff of Branch XXIX of the Court of First Instance
denying the omnibus motion, the decretal portion of which of Manila, sent separate Notices of Levy Upon Realty to
is as follows: the Registrar of Deeds of Malolos Bulacan, requesting him
"to make the proper annotation in the books of your office,"
WHEREFORE, the Omnibus Motion "by virtue of an order of attachment issued in Civil Case
of movant Consolidated Bank and No. 82-11611 dated August 30, 1982, ... upon the rights,
Trust Corporation to annul the writ of interests, and participation of which defendant NICOS
possession issued by this Court in favor Industrial Corporation in this case may have in ...
of Golden Star Industrial Corporation ."Transfer Certificate of Title No. T-210581 (T-32.505 M)
and to cite for contempt those who and Transfer Certificate of Title No. T-210580 (T-32,505
fraudulently secured and unlawfully M).
implemented the writ of possession is
hereby DENIED for lack of merit. (p. 8 Secondly, and more significant, the records clearly show
of the Brief for the Complainant- (page 4, Annex "D" of petition) that the Registrar of Deeds
Oppositor-Appellant in AC-G.R. CV of Malolos, Bulacan, on September 7, 1982, inscribed and
No. 04398 [p.118, Rollo]) annotated the foregoing Notices of Levy at the back of
Transfer Certificate of Title Nos. 210580 and 210581, to
The petitioner SOLIDBANK forthwith interposed an wit:
appeal before the Intermediate Appellate Court
arguing inter alia that the properties were under custodia TRANSFER CERTIFICATE OF
legis, hence the extrajudicial foreclosure and the writ of TITLE
possession were null and void, and that the right of NICOS
to redeem the auctioned properties had been acquired by No. T-210580 (T-32.504 M)
SOLIDBANK.
Entry No. 79524 (M): Kind; NOTICE
On December 13, 1985, the Intermediate Appellate Court OF LEVY UPON REALTY, Executed
rendered its assailed decision "finding no merit in this in favor of the CONSOLIDATED
appeal and affirming in toto the appealed order of June 9, BANK AND TRUST
1984, ruling that "the properties in issue ... were not CORPORATION (SOLIDBANK);-
in custodia legis at the time of the extrajudicial Plaintiff; Conditions: Notice is hereby
foreclosure." given that by virtue of an Order of
Attachment issued by the C.F.I. of
The petitioner moved for reconsideration, arguing that its Manila, Branch XXIX, in Civil Case
writ of attachment over the properties in question was duly No. 82-11611, all the rights, interest
registered in the Register of Deeds of Malolos, Bulacan, and participation of NICOS
and that the right to redeem said properties should be INDUSTRIAL CORPORATION-
retained or given back to SOLIDBANK as attaching Defendant over the herein described lot
creditor. is hereby levied upon attached.; Date of
Instrument: September 1, 1982; Date of
On March 13, 1986, the Intermediate Appellate Court Inscription: September 7, 1982 at 2:35.
promulgated its resolution denying the motion for
reconsideration for lack of merit. Meycauayan, Bulacan.
Hence this petition for review, on the grounds that TRANSFER CERTIFICATE OF TITLE
respondent appellate court decided the case contrary to law
and applicable decisions of the Supreme Court, and has No. T-210581 (T-32.505 M)
departed from the accepted and usual course of judicial
proceedings as to call for an exercise of the power of
supervision of this Court. Entry No. 79524 (M); Kind: NOTICE
OF LEVY UPON REALTY, Executed
in favor of THE CONSOLIDATED
The fundamental question herein, which is determinative of BANK AND TRUST
the other issues, is whether or not the subject properties CORPORATION (SOLIDBANK)
were under custodia legis by virtue of the prior annotation Plaintiff; Conditions: Notice is hereby
of a writ of attachment in petitioner's favor at the time the given that by virtue of an Order of
properties were extrajudicially foreclosed. Attachment issued by the C.F.I. of
Manila, Branch XXIX, in Civil Case On that very same day, August 29, 1983, Manuel Go sold
No. 82-11611, all the rights, interest the same properties to respondent GOLDEN STAR.
and participation of NICOS
INDUSTRIAL CORPORATION On October 5, 1983, respondent NICOS which had a one
Defendants over the herein described year right of redemption over the lands in question
lot is hereby levied upon attached.; executed a "Waiver of Right of Redemption in favor of
Date of Instrument; September 1, 1982; respondent GOLDEN STAR." The attempts to bring the
Date of Inscription: September 7, 1982 disputed properties out of the petitioner's reach, inspite of
at 2:35. the attachment, are plain and apparent.
Of equal importance is the fact that the transactions on Finally, GOLDEN STAR argues that even if the attachment
which respondent GOLDEN STAR's right to a writ of in issue was duly registered and the petitioner has a right of
possession are based are highly irregular and questionable, redemption, the certificate of sale of the lands in question
to say the least, considering the following circumstances: was registered on September 6, 1983. It claims that the
period to redeem therefore lapsed on September 6, 1984
On July 11, 1983, the Sheriff of Bulacan executed a without the petitioner bank ever exercising any right of
certificate of sale over the two lots in question in favor of redemption.
UCPB.
This argument is untenable. Well settled is the rule that the
On August 29, 1983, or about a month and a half later, pendency of an action tolls the term of the right of
UCPB sold its rights, interests and participation over the redemption. Specifically, tills Court in Ong Chua v. Carr,
lands to Manuel Go. (53 Phil. 975, 983) categorically ruled that:
Not only that. It has been held that "under a statute limiting
the time for redemption ... the right of redemption
continues after perfection of an appeal ... until the decision
of the appeal (Philadelphia Mortgage Co. v. Gustus, 75
N.W. 1107).
SO ORDERED.
Motions to dissolve said writ of attachment and
receivership were fled in the court below, supported by
G.R. No. L-37682 November 26, 1932 affidavits of the attorney in fact for the petitioner in which
it is recited, among other things, that the petitioner is not
indebted to the respondent in any sum whatever nor has it
CLAUDE NEON LIGHTS, FEDERAL INC., U. S. in any way breached any contracts with the respondent or at
A., petitioner, any time interfered in the management of its business in the
vs. Philippine Islands as carried on by its agent, the
PHILIPPINE ADVERTISING CORPORATION and respondent, and it has faithfully complied with every
FRANCISCO SANTAMARIA, Judge of First Instance condition of said contract; that the attachment of the
of Manila, respondents. machinery and plants of the petitioner, as well as its other
assets, is highly prejudicial to it as it is unable to proceed
Gibbs & McDonough for petitioner. with its business in the Philippine Islands and irreparable
Courtney Whitney for respondents. loss will result to it unless such attachment be raised; that
the filing of said suit was malicious, without foundation,
and intended only to injure the petitioner and to depreciate
the value of its holdings in the Philippine Islands. It does
not appear that any answer was made to said motion in
BUTTE, J.: which said allegations were denied or that any refuting
evidence was offered.
This case is to be determined upon the petition for writ
of certiorari and the demurrer thereto filed by the On June 20 1932, the court denied said motions to vacate
respondents. The petition sets up two causes of action: one the attachment and receivership, declaring that the writ of
attacking the validity of a writ of attachment issued by the attachment conforms to section 424 of the Code of Civil
respondent judge on the petition and affidavit of the Procedure.
respondent Philippine Advertising Corporation, on April 6,
1932; the second, attacking the validity of the order of the
respondent judge issued the same day on the petition of the The petitioner for certiorari prays that the writ of
respondent Philippine Advertising Corporation, appointing attachment issued by the respondent judge on April 6,
a receiver of the property which was seized by the sheriff 1932, as well as the order of the same date, appointing
under said writ of attachment. Manuel C. Grey receiver of the property of the petitioner,
be annulled.
SO ORDERED.