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PROVREM

PROVREM

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Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No.

125027 August 12, 2002

26, 1988, the trial court issued an Order of Preliminary Attachment6 against petitioner. The following day, the trial court issued a Writ of Preliminary Attachment. The trial court granted the request of its sheriff for assistance from their counterparts in RTC, Pampanga. Thus, on October 28, 1988, Sheriff Alfredo San Miguel of RTC Pampanga served on petitioner·s household help in San Fernando, Pampanga, the Notice of Levy with the Order, Affidavit and Bond.7 On November 7, 1988, petitioner filed an Urgent Motion to Discharge Attachment8 without submitting herself to the jurisdiction of the trial court. She pointed out that up to then, she had not been served a copy of the Complaint and the summons. Hence, petitioner claimed the court had not acquired jurisdiction over her person.9 In the hearing of the Urgent Motion to Discharge Attachment on November 11, 1988, private respondent sought and was granted a re-setting to December 9, 1988. On that date, private respondent·s counsel did not appear, so the Urgent Motion to Discharge Attachment was deemed submitted for resolution.10

ANITA MANGILA, petitioner, vs. COURT OF APPEALS and LORETA GUINA, respondents. CARPIO, J.: The Case This is a petition fore review on certiorari under Rule 45 of the Rules of Court, seeking to set aside the Decision1of the Court of Appeals affirming the Decision2 of the Regional Trial Court, Branch 108, Pasay City. The trial court upheld the writ of attachment and the declaration of default on petitioner while ordering her to pay private respondent P109,376.95 plus 18 percent interest per annum, 25 percent attorney·s fees and costs of suit. The Facts Petitioner Anita Mangila ("petitioner" for brevity) is an exporter of sea foods and doing business under the name and style of Seafoods Products. Private respondent Loreta Guina ("private respondent" for brevity) is the President and General Manager of Air Swift International, a single registered proprietorship engaged in the freight forwarding business. Sometime in January 1988, petitioner contracted the freight forwarding services of private respondent for shipment of petitioner·s products, such as crabs, prawns and assorted fishes, to Guam (USA) where petitioner maintains an outlet. Petitioner agreed to pay private respondent cash on delivery. Private respondent·s invoice stipulates a charge of 18 percent interest per annum on all overdue accounts. In case of suit, the same invoice stipulates attorney·s fees equivalent to 25 percent of the amount due plus costs of suit.3 On the first shipment, petitioner requested for seven days within which to pay private respondent. However, for the next three shipments, March 17, 24 and 31, 1988, petitioner failed to pay private respondent shipping charges amounting to P109, 376.95.4 Despite several demands, petitioner never paid private respondent. Thus, on June 10, 1988, private respondent filed Civil Case No. 5875 before the Regional Trial Court of Pasay City for collection of sum of money. On August 1, 1988, the sheriff filed his Sheriff·s Return showing that summons was not served on petitioner. A woman found at petitioner·s house informed the sheriff that petitioner transferred her residence to Sto. Niño, Guagua, Pampanga. The sheriff found out further that petitioner had left the Philippines for Guam.5 Thus, on September 13, 1988, construing petitioner·s departure from the Philippines as done with intent to defraud her creditors, private respondent filed a Motion for Preliminary Attachment. On September

The trial court granted the Motion to Discharge Attachment on January 13, 1989 upon filing of petitioner·s counter-bond. The trial court, however, did not rule on the question of jurisdiction and on the validity of the writ of preliminary attachment. On December 26, 1988, private respondent applied for an alias summons, which the trial court issued on January 19, 1989.11 It was only on January 26, 1989 that summons was finally served on petitioner.12 On February 9, 1989, petitioner filed a Motion to Dismiss the Complaint on the ground of improper venue. Private respondent·s invoice for the freight forwarding service stipulates that "if court litigation becomes necessary to enforce collection xxx the agreed venue for such action is Makati, Metro Manila."13 Private respondent filed an Opposition asserting that although "Makati" appears as the stipulated venue, the same was merely an inadvertence by the printing press whose general manager executed an affidavit14 admitting such inadvertence. Moreover, private respondent claimed that petitioner knew that private respondent was holding office in Pasay City and not in Makati.15 The lower court, finding credence in private respondent·s assertion, denied the Motion to Dismiss and gave petitioner five days to file her Answer. Petitioner filed a Motion for Reconsideration but this too was denied. Petitioner filed her Answer16 on June 16, 1989, maintaining her contention that the venue was improperly laid. On June 26, 1989, the trial court issued an Order setting the pre-trial for July 18, 1989 at 8:30 a.m. and requiring the parties to submit their pre-trial briefs. Meanwhile, private respondent filed a Motion to Sell Attached Properties but the trial court denied the motion. On motion of petitioner, the trial court issued an Order resetting the pre-trial from July 18, 1989 to August 24, 1989 at 8:30 a.m.. On August 24, 1989, the day of the pre-trial, the trial court issued an Order 17 terminating the pre-trial and allowing the private respondent to present evidence ex-parte on September 12, 1989 at 8:30 a.m.. The Order stated that when the case was called for pre-trial at 8:31 a.m., only the counsel for private respondent appeared. Upon the trial court·s second call 20 minutes later, petitioner·s counsel was still nowhere to be found. Thus, upon motion of private respondent, the pre-trial was considered terminated. On September 12, 1989, petitioner filed her Motion for Reconsideration of the Order terminating the pre-trial. Petitioner explained that her counsel arrived 5 minutes after the second call, as shown by the

transcript of stenographic notes, and was late because of heavy traffic. Petitioner claims that the lower court erred in allowing private respondent to present evidence ex-parte since there was no Order considering the petitioner as in default. Petitioner contends that the Order of August 24, 1989 did not state that petitioner was declared as in default but still the court allowed private respondent to present evidence ex-parte.18 On October 6, 1989, the trial court denied the Motion for Reconsideration and scheduled the presentation of private respondent·s evidence ex-parte on October 10, 1989.1âwphi1.nêt On October 10, 1989, petitioner filed an Omnibus Motion stating that the presentation of evidence exparte should be suspended because there was no declaration of petitioner as in default and petitioner·s counsel was not absent, but merely late. On October 18, 1989, the trial court denied the Omnibus Motion.19 On November 20, 1989, the petitioner received a copy of the Decision of November 10, 1989, ordering petitioner to pay respondent P109,376.95 plus 18 percent interest per annum, 25 percent attorney·s fees and costs of suit. Private respondent filed a Motion for Execution Pending Appeal but the trial court denied the same. The Ruling of the Court of Appeals On December 15, 1995, the Court of Appeals rendered a decision affirming the decision of the trial court. The Court of Appeals upheld the validity of the issuance of the writ of attachment and sustained the filing of the action in the RTC of Pasay. The Court of Appeals also affirmed the declaration of default on petitioner and concluded that the trial court did not commit any reversible error. Petitioner filed a Motion for Reconsideration on January 5, 1996 but the Court of Appeals denied the same in a Resolution dated May 20, 1996. Hence, this petition. The Issues The issues raised by petitioner may be re-stated as follows: I. WHETHER RESPONDENT COURT ERRED IN NOT HOLDING THAT THE WRIT OF ATTACHMENT WAS IMPROPERLY ISSUED AND SERVED; II. WHETHER THERE WAS A VALID DECLARATION OF DEFAULT; III. WHETHER THERE WAS IMPROPER VENUE. IV.

WHETHER RESPONDENT COURT ERRED IN DECLARING THAT PETITIONER IS OBLIGED TO PAY P109, 376.95, PLUS ATTORNEY·S FEES.20 The Ruling of the Court Improper Issuance and Service of Writ of Attachment Petitioner ascribes several errors to the issuance and implementation of the writ of attachment. Among petitioner·s arguments are: first, there was no ground for the issuance of the writ since the intent to defraud her creditors had not been established; second, the value of the properties levied exceeded the value of private respondent·s claim. However, the crux of petitioner·s arguments rests on the question of the validity of the writ of attachment. Because of failure to serve summons on her before or simultaneously with the writ·s implementation, petitioner claims that the trial court had not acquired jurisdiction over her person and thus the service of the writ is void. As a preliminary note, a distinction should be made between issuance and implementation of the writ of attachment. It is necessary to distinguish between the two to determine when jurisdiction over the person of the defendant should be acquired to validly implement the writ. This distinction is crucial in resolving whether there is merit in petitioner·s argument. This Court has long settled the issue of when jurisdiction over the person of the defendant should be acquired in cases where a party resorts to provisional remedies. A party to a suit may, at any time after filing the complaint, avail of the provisional remedies under the Rules of Court. Specifically, Rule 57 on preliminary attachment speaks of the grant of the remedy "at the commencement of the action or at any time thereafter."21 This phrase refers to the date of filing of the complaint which is the moment that marks "the commencement of the action." The reference plainly is to a time before summons is served on the defendant, or even before summons issues. In Davao Light & Power Co., Inc. v. Court of Appeals,22 this Court clarified the actual time when jurisdiction should be had: "It goes without saying that whatever be the acts done by the Court prior to the acquisition of jurisdiction over the person of defendant - issuance of summons, order of attachment and writ of attachment - these do not and cannot bind and affect the defendant until and unless jurisdiction over his person is eventually obtained by the court, either by service on him of summons or other coercive process or his voluntary submission to the court·s authority. Hence, when the sheriff or other proper officer commencesimplementation of the writ of attachment, it is essential that he serve on the defendant not only a copy of the applicant·s affidavit and attachment bond, and of the order of attachment, as explicitly required by Section 5 of Rule 57, but also the summons addressed to said defendant as well as a copy of the complaint xxx." (Emphasis supplied.) Furthermore, we have held that the grant of the provisional remedy of attachment involves three stages: first, the court issues the order granting the application; second, the writ of attachment issues pursuant to the order granting the writ; and third, the writ is implemented. For the initial two stages, it is not necessary that jurisdiction over the person of the defendant be first obtained. However, once the implementation of the writ commences, the court must have acquired jurisdiction over 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 the defendant.23 In the instant case, the Writ of Preliminary Attachment was issued on September 27, 1988 and implemented on October 28, 1988. However, the alias summons was served only on

a mere stipulation on the venue of an action is not enough to preclude parties from bringing a case in other venues. providing for service of summons by publication. Yet. Rule 14 of the Rules of Court provides that whenever the defendant·s "whereabouts are unknown and cannot be ascertained by diligent inquiry." However. Metro Manila. 1989 or almost three months after the implementation of the writ of attachment. In the instant case. the residence of private respondent (plaintiff in the lower court) was not alleged in the complaint. The case was filed in the Court of First Instance of Rizal. which was in Binondo. Pampanga35while private respondent resides in Parañaque City. In conclusion. The trial court had the authority to issue the Writ of Attachment on September 27 since a motion for its issuance can be filed "at the commencement of the action. following the general rule. while considered valid and enforceable. Parañaque City." Thus. she tried to serve summons on petitioner but the latter could not be located at her customary address in Kamuning. petitioner contends that the action should have been instituted in the RTC of Makati and to do otherwise would be a ground for the dismissal of the case.25 Moreover. absent words that show the parties· intention to restrict the filing of a suit in a particular place. Inc. Manila. Private respondent never showed that she effected substituted service on petitioner after her personal service failed.32 In the instant case. this exception is not applicable in this case. not as limiting venue to the specified place. The complaint. The rules provide for certain remedies in cases where personal service could not be effected on a party. In the instant case.. nevertheless. In the earlier case of Sy v. The Court there held that the evident purpose of alleging the address of the corporation·s president and manager was to justify the filing of the suit in Rizal. Improper Venue Petitioner assails the filing of this case in the RTC of Pasay and points to a provision in private respondent·s invoice which contains the following: "3. Hence. the Court ruled that there was no question that venue was improperly laid in that case and held that the place of business of Tyson Enterpises. who lived in San Juan."33 The exception to this rule is when the parties agree on an exclusive venue other than the places mentioned in the rules.24 Furthermore.27 The subsequent service of summons does not confer a retroactive acquisition of jurisdiction over her person because the law does not allow for retroactivity of a belated service. Tyson Enterprises. Among such exceptions are "where the summons could not be served personally or by substituted service despite diligent efforts or where the defendant is a resident temporarily absent therefrom x x x. Likewise.34 the reverse happened.38 In fact. after petitioner was declared in default."28 Based on this provision. as private respondent also claims that petitioner was abroad at the time of the service of summons. be effected upon him by publication in a newspaper of general circulation x x x. an additional equivalent (sic) to 25% of the principal amount will be charged. that she mentioned her residence to be in Better Living Subdivision. the trial court should have. where the business of private respondent is found. does not have a separate juridical personality that could enable it to file a suit in court. Tyson Enterprises. Venue stipulations in a contract. as admitted by private respondent in her Complaint37 in the lower court.36 However. as long as jurisdictional requirements are followed. Pampanga. Inc. Private respondent. is considered as its residence for purposes of venue. service may. Air Swift International. if petitioner·s whereabouts could not be ascertained after the sheriff had served the summons at her given address. But. this case was brought in Pasay City. at the election of the plaintiff. Thus. Nevertheless. then respondent could have immediately asked the court for service of summons by publication on petitioner. a corporation owned and managed by Dominador Ti. what was alleged was the postal address of her sole proprietorship. the stipulation does not limit the venue exclusively to Makati. or where the plaintiff or any of the plaintiffs resides. We therefore agree with private respondent that Makati is not the only venue where this case could be filed. by leave of court. do not as a rule supersede the general rule set forth in Rule 4 of the Revised Rules of Court. courts will allow the filing of a case in any venue. there is no law authorizing sole proprietorships to file a suit in court. This is the exact situation contemplated in Section 16. it was established in the lower court that petitioner resides in San Fernando. The trial court cannot enforce such a coercive process on petitioner without first obtaining jurisdiction over her person. Pasig instead of in Manila.31 In the absence of qualifying or restrictive words. We resolve to dismiss the case on the ground of improper venue but not for the reason stated by petitioner. Furthermore. It was only when private respondent testified in court. Philippines.January 26. the summons was actually served on petitioner several months after the writ had been implemented. rather. The plaintiff in that case was Tyson Enterprises.26 Rule 14 of the Rules of Civil Procedure. however. if it were true that private respondent could not ascertain the whereabouts of petitioner after a diligent inquiry. This would have been permissible had private respondent·s business been a corporation. Under the 1997 Rules of Civil Procedure. just like the case in Sy v.30 The parties must be able to show that such stipulation is exclusive. we hold that Pasay is not the proper venue for this case. acquired jurisdiction over the petitioner. Rather. and as such. Pasig. substituted service or by publication as warranted by the circumstances of the case." Private respondent asserts that when she commenced this action. What was alleged was the residence of Dominador Ti. Rizal. Inc. still she had some other recourse under the Rules of Civil Procedure. as was shown in the records of the case. The agreed venue for such action is Makati. she was in Guam purportedly on a business trip.40 The law merely recognizes the existence of a sole proprietorship as a form of business organization conducted for profit by a single individual and requires its proprietor or . did not allege the office or place of business of the corporation. the general rule is venue in personal actions is "where the defendant or any of the defendants resides or may be found. they should be considered merely as an agreement on additional forum. her business is a sole proprietorship. this made petitioner a resident who is temporarily out of the country. Quezon City or at her new address in Guagua. the Court held that the residence of its president is not the residence of the corporation because a corporation has a personality separate and distinct from that of its officers and stockholders. claims that the prior or contemporaneous service of summons contemplated in Section 5 of Rule 57 provides for exceptions. as we have discussed. The preliminary writ of attachment must be served after or simultaneous with the service of summons on the defendant whether by personal service. Section 14. on the day the writ was implemented.29 However. However. the instant case may be brought in the place of residence of the plaintiff or defendant. previously or simultaneously with the implementation of the writ. There are no qualifying or restrictive words in the invoice that would evince the intention of the parties that Makati is the "only or exclusive" venue where the action could be instituted.39 A sole proprietorship does not possess a juridical personality separate and distinct from the personality of the owner of the enterprise. we hold that the alias summons belatedly served on petitioner cannot be deemed to have cured the fatal defect in the enforcement of the writ. The Rules of Court provide that parties to an action may agree in writing on the venue on which an action should be brought.. at the election of the plaintiff (private respondent herein). Thus. respondent claims that petitioner was not even in Pampanga. If court litigation becomes necessary to enforce collection. Inc.

like other procedural rules. Civil Case No. J. Since private respondent (complainant below) filed this case in Pasay. Panganiban.. but rather Anita Mangila v. . We thus hold that the dismissal of this case on the ground of improper venue is warranted.41 The law does not vest a separate legal personality on the sole proprietorship or empower it to file or defend an action in court. Although petitioner filed an Urgent Motion to Discharge Attachment in the lower court. In fact. and pay taxes to the national government. Section 1 of the Rules of Court provides that a motion to dismiss may be filed "[W]ithin the time for but before filing the answer to the complaint or pleading asserting a claim. Rule 16. Air Swift International. and rightly so.1âwphi1. not being vested with legal personality to file this case.43 Thereafter. we hold that the case should be dismissed on the ground of improper venue. the complaint in the lower court acknowledges in its caption that the plaintiff and defendant are Loreta Guina and Anita Mangila.42 Thus. the proprietor with the juridical personality. petitioner timely filed a Motion to Dismiss44 on the ground of improper venue. the sole proprietorship is not the plaintiff in this case but rather Loreta Guina in her personal capacity. which should be considered as one of the proper venues for this case. The attached properties of petitioner are ordered returned to her immediately. and JJ. Logically then. Petitioner also continued to raise the issue of improper venue in her Petition for Review46 before this Court. petitioner had not been served the summons and a copy of the complaint. The title of the petition before us does not state. respectively.nêt WHEREFORE. Anita Mangila v. concur. Loreta Guina." Petitioner even raised the issue of improper venue in his Answer45 as a special and affirmative defense.owner to secure licenses and permits.. All these considered. 5875 is hereby dismissed without prejudice to refiling it in the proper venue. SO ORDERED. At that time. are designed to insure a just and orderly administration of justice or the impartial and evenhanded determination of every action and proceeding. the petition is GRANTED on the grounds of improper venue and invalidity of the service of the writ of attachment. Pampanga (petitioner·s residence) or Parañaque (private respondent·s residence). Sandoval-Gutierrez. it is the residence of private respondent Guina. private respondent should have filed this case either in San Fernando. Obviously. The rules on venue. petitioner expressly stated that she was filing the motion without submitting to the jurisdiction of the court. register its business name. this objective will not be attained if the plaintiff is given unrestricted freedom to choose where to file the complaint or petition. On leave. The decision of the Court of Appeals and the order of respondent judge denying the motion to dismiss are REVERSED and SET ASIDE.47 We find no reason to rule on the other issues raised by petitioner. Puno.

L-35951 August 31. hence absent. the dispositive portion of which order reads as follows: WHEREFORE.60 balance unpaid. which petitioner-appellant Pioneer Insurance & Surety Corp.00.. the respondents-appellees Rodriguez spouses filed a complaint for damages on February 15. 1971.279. 1971 in the Court of Appeals.in the amount of P150. et al. the game was granted by the Court against Rodriguez upon the filing by said plaintiff of a bond in the amount of P450. 1972 and thereafter promulgated a decision dated January 28. Rule 57 of the Rules of Court.. docketed as Civil Case No. filed a motion for a preliminary hearing of its affirmative defenses of lack of cause of action and bar by prior judgment and/or abandonment. 133-137) An amended complaint was now submitted to ad admitted by the Court on August 14. Plaintiff therein having prayed for the issuance of a writ of preliminary attachment. Ignacio for appellant. while personal properties found at the Rodriguez residence. and Allied Overseas (the Hongkong-based corporation). 1970 when Allied Overseas Commercial Co. 1971. (Cebu Branch) Check No. vs. 00951-R entitled "Pioneer Insurance & Surety Corp. although attached. petitionersappellants. on August 3. and the foreign-based corporation to collect a non-existing debt. 1972 and the decision of March 9. BRANCH XI AND THE SPOUSES BEN UY RODRIGUEZ. CA-G. which are grounds for a motion to dismiss. whereupon Lucman filed his answer to the amended complaint.. CB2169 (xerox copy marked Exhibit M issued iv Rodriguez to pay the indebtedness was a forgery.. 1972. Eriberto D. p. 1971. summons was (coursed thru the Philippine Consulate General in Honkong which turned it down as it had no authority to serve the process under the Rules of Court. pp. defendant. filed its manner to the complaint (Civil Case No. vs. No. 1971. 1971. entitled "Ben Rodriguez. To the amended complaint. duly posted. 1972. The case commenced on October 12. JUDGE OF THE COURT OF FIRST INSTANCE OF CEBU. the case was called for pre-trial. Lucman moved on February 11. notices of garnishment on different Cebu banks turned out negative. 00369-R (Record on Appeal.533. 1977 PIONEER INSURANCE & SURETY CORP.. and to enforce said claim against the surety on its bond." which decision had denied for lack of merit the petition filed therein for certiorari. 1971 against Pioneer Insurance & Surety Corp. respondent Judge denied the motion to dismiss.Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G. et al. No. thus the Court set the trial of the case on the merits for June 11. respondents. A motion to dismiss the complaint was thereupon filed by Rodriguez. 1972 against Lucman only. Record on Appeal. which . defendant Pioneer Insurance & Surety Corp. the agreed peso equivalent of the HK$418. a foreign corporation domiciled in Hongkong. Allied Overseas Commercial Co was not yet summoned.00. and lifted the writ of preliminary attachment setting. respondentappellee Rodriguez withdrew his claim for damages against Pioneer Insurance and Surety Corp.R. alleging further that otherwise his claim against the bond will forever be barred as said claim cannot be the subject of an independent civil action under Sec. Remotigue & Hilario G. Ltd.. respondents-appellees.000. Pioneer Insurance & Surety Corp filed its answer. Hon Judge Agapito Hontanosas. defendant Pioneer Insurance & Surety Corp. praying that he be permitted to present evidence of damages he sustained by reason of the wrongful attachment.. declaring that Rodriguez was no in any manner indebted to Lucman or to Allied Overseas Commercial Co and that the Metropolitan Bank & Trust Co. Court of First Instance of Cebu presided by respondent judge lion Agapito Hontanosas. were.. R-12069. Jr.R. the hearing on the claim for damages against the bond on January 14. vs. 133) with prayer to enjoin a hearing scheduled on August 7.R. The parties manifested failure to settle the case amicably. ordering him to pay damage. Civil Case No. motion for withdrawal was granted by the Court Thereafter. for private respondent. R-12069.F. attorneys foes and expenses of litigation by reason of the and malicious attachment issued by the Manila Court. This was denied by the respondent Judge in his Order dated May 15. 1972 in CA-G. Defendant Pioneer Insurance and Surety Corp. the Order of Default dated January 10. Lucman having been impleaded as assignee defendant Allied Overseas Commercial filed a motion to dismiss on the ground of auter action pendant.00. be held liable for damages. AND HADJI ESMAYATEN LUCMAN. R12069) alleging affirmative and special defenses. 1971 by impleading left petitioner-appellant Hadji Esmayaten Lucman as additional. 1970 dismissed the complaint on the ground of improper venue since defendant Rodriguez was a resident of Cebu. however. The Court of Appeals In its Resolution dated August 7.. 1971. on October 30. 1972 in Civil Case No. THE HON. With the intention of filing a separate civil action in the Court t T of Firs instance of Cebu. filed in the Court of First Instance of Manila a complaint against the respondent-appellee Ben Uy Rodriguez for the collection of a sum of money arising out of a transaction between them in the amount of P450. 1971. AGAPITO HONTANOSAS. that is an action pending in the Court of First Instance of Rizal. Upon an ex parte motion of Rodriguez. et al. On April 27. J: We reverse the decision of the Court of Appeals 1 promulgated. and that Pioneer Insurance & Surety Corp. 1971 distributed this petition for certiorari. On November 25. On May 5. et al. followed by an application for damages against the bond. Allied Overseas Commercial Co.. not removed therefrom. 1972 as well as the decision (Re: Hadji Esmayaten Lucman) dated January 28.000. No. Francisco E. so also was the motion for reconsideration per its Order of June 2. 1971. respondent Judge set aside the order of default against Lucman including the decision against him. thru counsel was present The other defendant. A petition for certiorari and prohibition was then filed by Pioneer Insurance and Surety Corp. alleging that respondent Judge committed grave abuse of discretion amounting to lack and/or excess of jurisdiction in lending the motion for preliminary hearing. making allegations tending show confabulation between the new defendant. petitioners. On February 21." issued by the respondent Presiding Judge of the Court of First Instance of Cebu. Davide. With respect to the other defendant Allied Overseas Commercial Co. the Court declared Lucman in default in its Order of January 10. The corresponding levy in attachment was made by annotation on the properties of Rodriguez which consisted of 4 pieces of lots. 1972 to set aside the order of default and to admit the answer earlier filed by him to the amended complaint. 14351 between the same parties with the same allegation and defences of counterclaims. the complaint praying that Rodriguez be declared as not in any manner indebted to the defendant Allied Overseas Commercial Co. prohibition and/or mandamus with preliminary injunction seeking to nullify the order of default of February 29. The court iii its order of December 22. Plaintiffs with counsel attended. are hereby reconsidered GUERRERO. 20.

nor have p e a l . Philippines.. 1972 at 8:30 o'clock in the morning. Escolta. Madrigal Bldg. of Hongkong. as indeed no such pre-trial can as yet be set as the issues with respect to the amended complaint are not yet fully joined since plaintiffs have not answered the compulsory conterclaims separately set up by the defendants in said summons to theforeign corporations Allied Overseas Commercial Co.and set aside. Let the hearing of this case on the merits be scheduled as previously set for February 28. and on February 23. 1972. The Clerk of Court is directed to notify defendant Hadji Esmayaten Lucman thru counsel Atty. ( S G D . Ltd. p p . p . February 21. Eriberto D. 2 9 7 2 9 8 ) Forthwith. Manila by telegram. 1972. SO ORDERED. ) A G A P I T O H O N T A N O S A S J U D G E ( R e c o r d o n A p Counsel for the petitioners received the telegram notices on February 21. 1972 counsel filed an urgent motion for postponement of the pre-trial. 2 9 8 ) . claiming that he was not aware of any such pre-trial having been previously set for February 28. 414. DEFAULT AND DECLARE PROCEEDINGS NULL AND VOID RE CIVIL CASE BEN RODGIGUEZ ET AL VERSUS HADJI ESMAYATEN LUCMAN GRANTED STOP PRETRIAL SHALL PROCEED AS PREVIOUSLY SCHEDULED FEBRARY 28 1972 MORNING ( R e c o r d o n A p p e a l . Ignacio At Rm. the clerk of court sent the telegram notices in the following wise: YOUR MOTION SET ASIDE ORDER. The parties thru their respective counsels are to be immediately notified of this order. Cebu City. 1972 in the morning.

000. 1972 and the period to appeal will expire on April 24.R.000. considering that whatever errors respondent Judge might have committed can be assigned as specific errors on appeal. 1972 of respondent Judge. stated. to command said Judge to elevate the records of the case for review and to prohibit him from enforcing his decision and from taking further action in the case. 306-307). an order was issued by the Court postponing the pre-trial of the case to March 20. the Court of Appeals reconsidered the resolution cited above. (Record on Appeal. and held among others. No. thus ³ Finally we are not also convinced that the remedy of appeal is inadequate under the circumstances obtaining in the principal cue Whatever errors respondent Judge might have committed in his order or judgment may be assigned as specific errors in their appeal. pp. that counsel has a hearing in Manila of a criminal case which is of intransferable character. 12069. 1972.000.00 as exemplary damages and P30. therefore. defendants Pioneer Insurance & Surety Corp. Meanwhile. convinced that the remedy of appeal is inadequate. and prayed that the pretrial be set at some other date in March preferably either March 22 or 23. 1972 and the Decision of March 9. This is shown by the handwriting at the upper right hand corner of Annex R (Decision) when they received the decision on March 25.00 as attorney's fees. 12-13 of their Petition). (Record on Appeal. Recrod on Appeal. 1972. on the condition that should defendants be found that as to plaintiffs will be allowed to present their evidence and the defendants will be declared in default for failure to appear at the pre-trial. and on October 30. Court of Appeals. Defendant Lucman was also ordered to pay plaintiffs the sum of P50. 1972.00 for expenses of litigation in Manila. declaring the personal check of the plaintiff to be a forgery. to pay P350. and among others. the Court of Appeals promulgated its resolution dismissing the petition aforestated and ruled among others as follows: Furthermore. 1972. 1972 when the case was called.00 as moral damages. they cannot raise said issues or defenses for the first time on appeal.000. the respondents herein answered the same. P50. amd malicious. pp. to wit: Upon this fact alone. which were the only free dates for the month of March 1972 in the calendar of the counsel. and Hadji Esmayaten Lucman filed the Notice of Appeal and the Original record on Appeal.00 as exemplary damages and P50. pp.m. We are not. 1972 (Resolution. such remedy is not sufficiently speedy and adequate to cure the defects in the proceedings therein or to remedy the disadvantageous position of Petitioners because. The evidence was thereupon presented and on March 9. (Record on Appeal. pp. On a motion for reconsideration. 1972 declared the defendants in default and allowed the plaintiffs to present their evidence in support of their complaint before the Clerk of Court. ( R e c o . the Court of Appeals rendered its Decision denying the petition for lack of merit. 1972. Within 30 days reglementary period to perfect the appeal. and ordering defendant Pioneer Insurance and Surety Co. 301-303) Apparently. and issued another resolution dated July 25. This Court can review any all such errors of fact and law in the appeal. the Court on February 29. The petition having been given due course. 1977 the respondent Judge promulgated his Decision declaring that the plaintiff Rodriguez is not in any manner indebted to defendant Lucman or to Allied Overseas Commercial Co.plaintiffs asked that said foreign corporation be dropped from the amended complaint. the above urgent motion for postponement although sent through registered airmail special delivery and received by the Dispatching Section of the Post Office of Cebu on February 28.000. No. 00951-R) seeking to nullify the order of default of February 29. 1972 before the Court of Appeals a petition for certiorari. we believe as petitioners contend that although appeal is available. that the attachment of the properties of plaintiff in the Manila case was wrongfu. 304-305) Upon verification from the radio Communications of the Philippines that the telegrams mentioned above were delivered and received by the addresses on February 21. 1972 in ivew of the absence of the defendants and counsel notwithstanding notices of hearing and telegrams sent to them.. petitioner's filed on April 4. the latter ordered corrected and amended but finally approved by the Court on July 31. 365-366) was not received by the Court for on February 28. 1972 giving due course to the petition and required the respondents to answer the petition (not a motion to dismiss). On April 13. pp. prohibition and/or mandamus with preliminary injunction CA-G. It has been consistently held that certiorari is not available where the remedy of appeal is present . petitioners instant remedy is not proper because of their own admission that appeal is available from the decision of respondent Judge (Discussion. since they were deprived of raising any issue or defense that they have in the respondent court by reason of the order of default. 1972 at 9:00 a.

30. Oct. but when the defendant's answer contrains a counterclaim. 1971. G. Atty. When the defendant's answer has a cross-claim. how much? Petitioners filed a motion for reconsideration which was denied. 647). (b) The simplification of the issues. 5 requires the court to prepare a pre-trial calendar of cases for consideration as above provided. the answer ordinarily is the last pleading. On the other hand. Both counsels agreed that the only issue to the resolved bu the Court is whether the bonding company is laible or not. 3. Revised Rules of court. II. Failure of the client to appear is a ground for dismissal.. hence this appeal by certiorari from the decision of the Court of Appeals and is now before Us being assailed and faulted on three principal issues: 1. pp. Amando Ignacio also appeared. No.. Rule 20 of the Rules requries the court to hold a pre-trial before the case is heard and since in this case. 2. Sec. Ong Ante. 1972 declaring defendants (now the petitioners) in default at the second pre-trial hearing and allowing the plaintiffs (the present private respondents) to present evidence ex parte before the Clerk of Court. 1971. The procedure for the pre-trial of a case is laid down by Rule 20. the rule wa sby no means intended as an implacable bludgeon but as a tool to assist the trial court in the orderly and expeditious conduct of trial. the ourt shall direct the parties and their attorneys to appear before it for a conference to consider': (a) The possibility of an amicable settlement or of a submission to arbitration. The above citations and authorites are the ground rules upon which the conflictings claims of the opposing partie's may be resolved and decided. Sec. L-30558. the defendant Pioneer Insurance & Surety Corp. 4 directs that a reocrd of the pre-trial results be made. 15. speaking thru Justice Bengzon. Nov. And where the plaintiff files a reply alleging facts in denial or avoidance of new matter by way of defense in the answer. the Revised Rules of Court. Custombuilt Manufacturing Corp. Co. Home Ins. the illegality of th order of the default and the decision arising therefrom. 1.. the lack of jurisdiction of the Court in the principal case. 1967D Phil. it shall be the duty of the clerk of court to place case in the pre-trial calendar. Republic. Taroma v. (Borja vs. et. 1971 and the decision dated March 9. United States Lines Co. it would have been impractical. Pre-trial mandatory. (e) The limitation of the number of witnesses. and that upon the submission of the last pleading in a particular case. of the North America vs. et. the counsel for the defendant answered in the negative. L-29612. First. the fact that an amended complaint was later filed. pp. (c) The necessity or desirability of amendments to the pleadings. (American Ins. Nov. this is mandatory.( R o l l o . (f) The advisability of a preliminary reference of isues to a commissioner. No. useless and time-consuming to call another pre-trial. The rule is addressed to the sound discretion of the trial court (Rice and Corn Administration vs.L-26794. and if so. . which provides. 1971). thus making possible an amicable .R. Roxas. al. p present Rules make pre-trial mandatory. 92-93 that on May 5. a pre-trial. Vo. 1975 (67 SCRA 508). to wit: Sec. after the last pleading has been filed. Atty. ³ A party who fails to appear at a pre-trial conference may be non-suited or considered as in default.R. the answer of the opposing party to the counterclaim or the answer of the co-defendant to the cross-claim is the last pleading. the plaintiffs and their counsel. 2-3). Under the rules of pleading and practice. the answer or the cross-defendant to it sit he last pleading. In the case of Insurance Co. appeared. represented by its counsel. Republic 1967D Phil. 63. cited in Saulog vs. there is spread out in the Record on Appeal. When asked by the court if there is any possibility of settling this case amicably. Hilario Davide Jr. such reply constitutes the last pleading. was conducted by the court between the plaintiff Ben Uy Rodriguez spouses and the defendant Pioneer Insurance & Surety Corp. 1. Co. a pre-trial has already been had. ³ In any action. 4. which states: When this case was called for pre-trial today. did not necessitate another pretrial. 1968. al. plaintiff's answer to it is the last pleading. Where the plaintiff's answer to a counterclaim contains a counterclaim constains a counter-claim agains the opposing party or a cross-claim against a co-defendant. 2. No. Sayo. 73 Phil. settlement or doing away with at least the non-essentials of a case from the beginning. (d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proofs. 1 3 8 Philippine jurisprudence has laid down the legal doctrine that while it is true that it is mandatory for ) the parties and their attorneys to appear before the trial court for a pre-trial conference to to consider inter alia the possibility of an amicable settlement. (Francisco. the Supreme Court. Allows the ocurt to render judgment on the pleading or summary judgment as justice require. held that Sec. vs. Both client and counsel must appear at the pre-trial. The petitioner's main thrust in this legal attack is directed to the other dated February 29. 21 SCRA 887. which evidence uncotradicted and unrebutted was lifted almost en toto as the basis of the decision granting damages so enormous and so huge in amount as to exceed the bounds of reason and fairness. vs. 15. Sec. And the reason for making pre-trial the mandatory is that pre-trial conferences bring the parteis together. and Sec. Failure to appear at pre-trial conference. Unquestionably. (g) Such other matters as may aid in the prompt disposition of the action. the legality of the order of default dated February 29. G. L-37296. the inadequacy of the remedy of appeal. Oct. and 3. 1972. 1967. 401. The record or results of said pre-trial is found in the ordr of the court dated May 5.

caused the markings of the following exhibit. We have not lost sight of the fact that when the first pre-trial was called and conducted. Both counsels are given ten (10) days from today within which to file their simulatteneous memoranda or authorities in support of the motion for preliminary hearing and its objection thereto. and Exhibit "B-pre-trial". 1969. and had manifested its opposition to settling the case amicably. where the issues had been joined and where the court itself had been satisfied that a hearing on the merits is the next step to conduct as int he instant case where the court. 1971 at 8:30 o'clock in the moring. 9 3 ) . the affidavit of handwriting expert Perfecto Espina. The counsel for the defendant also reserved his right to object to the Exhibits of the plaintiffs and mark his exhibits during the trial on the merits of the case. 1972. the court perforce lack the autority to declare a failure to prosecute on the part of the plaintiff for failing to attend such second pre-trial. SO ORDERED. S G D . the party litigants were the Ben Uy Rodriguez spouses as plaintiffs. The mandatory character of a pre-trial nad the serious consequences confronting the parties in the event that each party fails to attend the same must impose a strict application of the Rule such that where we find no authority for the the Court to call another pre-trial hearing. set he trial of the case on its merits for June 11. the uselessness and the absence of authority to call a second U pretrial hearing since the amended complaint merely impleaded Lucman as the assignee of the original defendant AlliedD Overseas Commercial Co. and Allied Overseas Commercial Co.Atty. the original complaint had been amended to implead Hadji Esmayaten Lucman as additional defendant. ( R e c o r d o n A p p e a l . the trial on the the merits of this case is set for June 11. while Pioneer Insurance & Surety Corp. It serves no purpose for the court to call again another pre-trial where the parties had previously agreed to disagree. as in fact there is none in said Rule. a second pre-trial is impractical. The amendment of the complaint to implead Lucman J did not. Jr. the prayer was the same and the amount of damages sought was the same as that in the original complaint. May 5. 1971. useless and time-consuming. it also lack the authority to declare the defendant "as in default" by reason of the latter's failure to be present at the said second pre-trial. the finanacial report of Ben Rodriguez as of December 31. and thereafter he reserved his right to mark additinal exhibits during the trial on the merits. the conclusion is inescapable that the respondent Judge committed a grave and serious abuse of discretion and acted in excess of jurisdiction in declaring defedant Pioneer Insurance & Surety Corp. (although not yet summoned) were the defendants. Following agreement of the partiesm. "as in default" for failure to attend the second pre-trial called by the Judge on February 29. Philippines. Indeed. 1971. Exhibit "A-pre-trial". p . ) A G A P I T O H O N T A N O S A S The defendant Pioneer Insurance & Surety Corp. having complied with the order of the Court to appear and attend this pre-trial. however. and thereafter his incident will be resolved by the Court. and lacking such authority. The parties thru their respective counsels are notified in open court of this order. and neither may it be punished by the court by its orde declaring said defendant as in default. said party may no longer be compelled to attend a second pre-trial hearing. 1971. there is nothing in the Rules that empowers or has called a first pre-trial duly attended by tha prties. whereas at the time the second pre-trial was called. Hilario Davide. alter the impracticability. and no additional cause of action was alleged. In other words. after the pretrial on May 5. Cebu City.

1972 at the Cebu Post Office. Rollo.. plaintiffs made no answer whatsoever. 1967. counterclaim of defendant Lucman 'Record on Appeal. United Lines Co. could have restored their standing in court and given them an even chance to face their opponents. The records (Record on Appeal. interposing therein a compulsory counterclaim. This is also confirmed by the Order of the Court dated April 11. Court of Appeals. The respondent Court of Appeals has ignored established rulings of the Supreme Court in Pineda vs. The above state of the case as far as the pleadings are concerned clearly and manifestly show that the case was not yet ready for pre-trial. Accordingly the court is given the discretion to dismiss the case should plaintiff not appear at the pre-trial. 67 SCRA 228. 67 SCRA 288 that Courys should be liberal in setting asiode default judgment. Jr. Court of Appeals. 299. February 7. counsel for Pioneer Insurance & Surety Corp. a compromise. 301-303) had alleged grounds which are meritorious and not frivolous nor intended for delay. 1972 that plaintiffs made their reply to the answer. 1972 notifying the parties of the pre-trial on February 28. 1972 at 8:30 o'clock in the morning (Record on Appeal. because the records indicate that the plaintiffs' answer to the counterclaim. February 21. 299-301). the denial of the motion for postponement was a grave abuse of discretion. 21 SCRA 863). p. 3.M. Eriberto Ignacio and Hadji Esmayaten Lucman on the same day it was filed. vs.. necessitate another pre-trial.Second. pp. where the Court. 1972 will be granted by the court but where the court had actually postponed the hearing on February 28. "registered Air Mail/Special Delivery with Return Card. Reading the order of the court dated february 29. But as of February 7. informing it of the February 28 pre-trial hearng. the corporation. speaking thru Justice Bengzon. 67 SCRA 509. in Sta. sayo. with the warning that a party who fails to do so may be non-suited or declared in default. 512-513. there was no telegram sent to party defendant Pioneer Insurance & Surety Corp. 1972. 239-240). 1972 were insufficient. The clerk did send the telegram to Atty. We have careffully noted the telegraphic notices sent by the clerk of court and we find this omission which is fatal to the respondents' cause: no telegram was sent to the defendant Pioneer Insurance & Surety Corp. pp. as required strictly by law. but omitted and failed to send telegram to the party itself. we hold the Court of Appeals in reversible error therefor. The motion (Record on Appeal. counsel has a hearing previously set in Manila in a criminal case which was of an intransferable character. said that: A party who fails to appear at a pre-trial conference may be non-suited or considered as in default. p.. it is necessary to emphasize once more the pronouncement of this Court speaking through Justice Teehankee in Taroma vs. 1972.. the plaintiffs have not yet filed their answer to the compulsory counterclaims of the defendants (which is necessarily the last pleading to be filed in order that the case is ready and ripe for the pre-trial). 306-307. which are ³ 1. it appears in black and white (Record on Appeal. and in Pineda vs. 1972. interposing too a compulsory counterclaim. pp. Likewise. (Record on Appeal. that it was as yet premature because the last pleading had not yet been filed by the plaintiffs. (2) the other message addressed to Hadji Esmayaten Lucman per RCPI San Juan also delivered on the same day. . in the exercise of wise discretion. 1972 when the court made the order declaring defendants in default. as of February 7. As of February 21. pp. (Record on Appeal. pre-trial or on the merits of the case. The Court. 194) that only two telegraphic messages were sent by the clerk of court. This was the offficial advice received by the Court from the Radio Communications of the Philippines thru which the telegrams were wired. Court of Appeals. Eriberto Ignacio. 1972 as against Lucman only. February 29. Before this date of February 7. The Court had directed the clerk of court to send notice by telegram to the parties for the February 28 pre-trial. 2. that is on February 21. time and palce of the pre-trial conference and assuring that the party either appear thereat or deliver to counsel a written authority to represent the party with power to compromise the case. assuming that there was need to have another pre-trial. in law and jurisprudence. 1972 was issued and dated February 7. Per advice from the Radio Communications of the Philippines. At this juncture. pp. the same day it was filed but the signature of he recipient was unreadable. defendant Pioneer Insurance & Surety Corp. Eriberto Ignacio delivered to the given address at 3:45 P. pp. vs. 1972. For refusing to set aside said order of default and the decision." If the letter containing the moton was not yet delivered to the Court the next day. As of this date. the court had already promulgated the Decision dated January 28. these two messages were received by the addressees. but the exercise of discretion must be based on reasonable grounds. The reason for requiring the presence of the party who must be notified is explained in the case of Home Insurance Co. 1971 by impleading the defendant Hadji Esmayaten Lucman who filed his answer on December 24. nor any answer to the compulsory counterclaim of the Corp. the complaint was already amended to implead Lucman who submitted his answer with compulsory counterclaim. (L-25593. record on Appeal) but was not immediately delivered to the court although the envelope bore the words. Notice to the counsel is not enough. It was only on February 22. not attributable to defendants. Inc. 1972 due to the absence of the defendants and their counsel. pre-trial cannot be had as yet be set as the issues are not yet fully joined. Decidedly. Fourth. This shows the purpose of the Rules to compel the parties to appear personally before the court to reach. 1972. this was clearly a postal neglect and omission to perform its duty. the complaint had been amended on August 27. the notices given by the clerk of court thru telegrams on February 21. Third. as shown in the postmarks on the envelope (photographed on p. We reiterate ³ that this failure is a jurisdictional defect. it is best that the trial courts uniformly serve such notice to party through or care of his counsel of the obligation of notifying the party of the date. and their answer to the compulsory. And to the compulsory counterclaim of defendant Pioneer Insurance & Surety Corp.301). if possible. We grant the court the discretion to postpone any hearing. the Court in reaffirminf the ruling that notice of pre-trial must be served separately upon the party and his counsel of record. 45 SCRA 596 that a pre-trial is unnecessary where the case could not be settled and that the fact that an amended complaint was later filed with leave of court did not. no formal order of the court scheduling the February 28 pre-trial had been received. thus ³ (1) the message addressed to Atty. that: For the guidelines of the bench and bar. Annex W. and scheduled the pre-trial to March 20. Atty. we find no reason nor fairness in the court's order of February 29. 1972 finding defendants as in default since the pre-trial was moved to a later date in March as prayed in the motion. pp. but plaintiffs had not yet filed their reply and their answer to the counterclaim. the prematureness of the pre-trial called on February 28. Even the state of the pleadings as of February 21. therefore.1972. The telegram was sent to the counsel of this defendant. Maria. 1972 denying the defendant's Urgent Motion for Reconsideration. The other states. 304-306). because the records indicate that the plaintiffs' answer to the counterclaim is dated February 22. 1972. The motion for postponement was received on February 28. retates that while service of such notice to party may be made directly to the party. We are also concede that counsel may not presume nor take for granted that his motion for postponement and the proposed setting to March 22 or 23. 1971. 1972. 1972 when the telegrams were sent notifying the parties of the pre-trial for February 28. that a party may not be declared in default for future to attend the pre-trial where only his counsel was notified of the pre-trial schedule. undue the circumstances. 1972. 1972 reveals the prematureness of calendaring the case pre-trial. The records do not disclose any reply of the plaintiffs to the answer of Pioneer Insurance & Surety Corp. 293) show that the notice of the clerk of court setting the case for pre-trial on February 28. 1972 and personally 4eceived by the addressee himself. November 15. 322. but none to the defendant itself. had also filed its answer to the amended complaint.

Jan. The petitioners contend that under See. May 25. therefore. 30. Petitioners can no longer present their evidence to rebut the claim of damages. attachment was ever presented or filed. Rule 57 of the Revised Rules of Court. and shall be included in the final judgment." (Record on Appeal. 113) Now to the case at bar. (when the check exhibited was only a xerox copy of the original. the rule that a claim for damages arising from the issuance of a wit of attachment. the Court in its decision held that the remedy of appeal is not inadequate in that whatever errors respondent Judge might have committed in his order or judgment may be assigned as specific errors in their appeal before said tribunal. courts have gone even as far as to disregard completely the question of petitioner's fault. 63 SCRA 285. to redress or prevent the wrong done. in that it will promptly relieve the petitioner from the injurious effects of the order or judgment complained of. 14499 entitled "Hadji Esmayaten Lucman vs. Courts ordinarily do not deny the writ if the result would be to deprive a party of his substantial rights and leave him without remedy.The second point at issue is whether the remedy of ordinary appeal in the case is palin. 24. On general principles. since they were deprived of raising any issue or defense that they have in the respondent court by reason of the order of default. the reason being. Court of Appeals. v. Yet. to wit: Claim for damages on account of illegal attachment. 894. plaintiff Rodriguez is relieved from civil liability on an inexplicable and unprecedented finding that the plaintiffs' check was a forgery. Santos v. but a remedy which will promptly relieve the petitioner from the injurious effects of that judgment and the acts of the inferior court or tribunal. Hamada. Neva Españ. 1958. 12069-R filed by the Rodriguez spouses. There are numerous cases where the Supreme Court has granted the writ notwithstanding the existence of an appeal. Varquez. the private respondents argue that the above rule is not applicable to the case at bar. it has been defined as "a remedy which is equally beneficial. that appeal is not an adequate remedy where party is illegally declared in default. Dec. Estioco vs. 1970 ed. 11 CJ. Writs have been granted despite the existence of the remedy of appeal where public welfare and the advancement of public policy so dictate. We have but to rule on them. 57 Philippines 885. Civil Case No. Nava. the conflicting notices as to the hearing ordered. Such damages may be awarded only upon application and after proper hearing. Villegas. Carpio. The application must be filed before the trial or before appeal is perfected or before the judgment becomes executory. the records show that private respondent Rodriguez filed an Application for Damages Against Bond dated December 3. et al. injunction. on October 30. The latest decisions of this Court in Ty Tion et al. express or implied. We are satisfied that petitioners are cornered into a desperate position where they have been ordered to pay damages over and above the amount of the bond posted for the attachment of private respondents' properties as ordered by the decision of the court based on evidence presented ex parte by reason of the order of default. 169-170). 49-55).. pre-trial in one and on the merits in the other..11079. and that it can review any errors of fact and of law in the appeal. Lopez et al. and that after due notice and hearing judgment be rendered against the Pioneer Insurance and Surety Corp. The position of the petitioners is correct. 20 of the Revised Rules of Court provides.. lay down the proper and pertinent rule that the claim for damages against a bond in an aleged wrongful attachment can only be prosecuted in the same court where the bond was filed and the attachment issued. 77-81) praying that ³ Wherefore.000. to wit: . Moir. Thus. is not the doing of the petitioners of their standing in court was in effect a failure of justice. 33 Phil. vs. L20697.. 890. 1964). citing Moran. pp. 95 Phil. the writ of certiorari will lie where there is no appeal. 1970) As to what is an adequate remedy.. (Moran.36 Phil. The existence of an appeal is a bar to writ of certiorari where such appeal is in itself a sufficient and adequate remedy. they cannot raise said issue or defense for the first time on appeal. he may recover. Vol. hold one to be correct and dislodge the other as an error. Montelibano. Pachoco v. et al. upon the bond given or deposit made by the attaching creditor. 58 Phil. or where the orders complained of were found to be completely null and void. Raymundo vs. Tumangday L-14500. This conflicting stand of the Court of Appeals issuing from the same case is as difficult to resolve as it is to reconcile them. Rules of Court. Petitioners assail the jurisdiction of the court of First Instance of Cebu in Civil Case No. 885. undoubtedly. 20. which original was in the records of the case filed in the court of First instance of Rizal. May 21. Comments on the Rules of Court. pp. July 31. for such amount of damages as may be proved and established for defendant. 1972. with due notice to the attaching creditor and his surety or sureties. 3. 807.a vs." (Silvestre v. and more than that. Torres. seeking damages for the alleged malicious and unlawful is2suance of the writ of preliminary attachment against the latter's properties granted by the Court of First Instance of Manila upon the posting of a security bond in the amount of P450. 57 Phil. If the judgment on the action be in favor of the party against whom attachment was issued. xxx xxx xxx On the other hand.. the defendant be allowed to present evidence to prove damages sustained by him by reason of the attachment against the Pioneer Insurance & Surety Corp. L. the Supreme Court to avoid future litigations. or that the appeal was not considered the appropriate remedy. and in those instances wherein the lower court has acted without jurisdiction over the subject matter. passed upon a petition for certiorari though the proper remedy was appeal. such remedy is not sufficiently speedy and adequate to cure the defects in the proceedings therein or to remedy the disadvantageous position of petitioners because. receivership and replevin should be presented in the same action is not applicable where the principal case has been dismissed for lack of Jurisdiction and no claim for damages could therefore have beer presented in said case. 1970 (Record on Appeal. (Silvestre v. 4189.G. 51-52. 50 O. 350. We find here a number of special facts and circumstances which addresses themselves to the wise discretion of this court with such force to induce Us to grant the writ in order to prevent a total or partial failure of justice. setting forth the facts shaking his right if damages and the amount thereof. speedy and sufficient. p. it is respectfully prayed that in the event the motion to dismiss and the motion to discharge attachment were granted. speedy and adequate such that the writ of certiorari will not lie. Tan Suyco vs. Benjamin Rodriguez. et al. 1962. The court erred in ignoring the doctrine laid down in Omico v. et al. Rule 57. the claim for damages against a bond in an alleged wrongful attachment can only be prosecuted in the same court where the bond was filed and the attachment issued. or reduce the unconscionable and excessive damages or question the release of plaintiff's debt. not merely a remedy which at some time in the future will bring about a revival of the judgment of the lower court complained of in the certiorari proceeding. Marsman & Co. of the parties. hold that the Court of Appeals erred in holding that the appeal is adequate. .. Alvendia. any damages resulting from the attachment. We. 1963 pp. Vol. nor any plain. for the same may not be submitted nor raised for the first time on appeal. 82. Moreover. The ruling in the case of Santos vs. 1960. or We find that no claim for damages against the surety bond in support of a preliminary. or where the order or judgment complained of is a patent nullity. Torres. in a hearing that may be conducted for the purpose with due notice to the plaintiff and the surety.. 1972 ruled that although appeal was available. the broader interests of justice so require. No. Sec. We have adverted to previously that the Court of Appeals in its extended Resolution dated July 25. that acts performed with absolute want of jurisdiction over the subject matter are void ab initio and cannot be validated by consent. Again. (Fernando v. L-26417. is not controlling here. 21 Phil.. speedy and adequate remedy in the ordinary course of law. Javier.00 given by the petitioner Pioneer Insurance & Surety Corp. L-17229. pp. 5 SCRA 761 reiterating the rulings in Del Rosario vs. 360 advanced by respondents to support their stand.

holding that the Court of First Instance of Cebu lacks jurisdiction to hear and determine the claim for damages arising from the alleged wrongful attachment issued by the Court of First Instance of Manila and ordering the dismissal of that case (Civil Case No. consent. which he cannot now complain before this Court.. pp. IN VIEW OF THE FOREGOING.oz Palma. J. Cebu City. In effect. he is considered to have submitted to said court's jurisdiction. Petition granted.The defendant further prays for such other reliefs and remedies consistent with law. over which respondent-appellee Judge had not acquired jurisdiction pursuant to Sec. 1972 and the decision rendered by the respondent Judge on March 9. Rule 57 of the Revised Rules of the Court. ordered that the hearing of the application for damages against the bond be set aside on January 14. this Court held that even if jurisdiction was not originally acquired by the Court over the defendant due to allegedly defective services of summons. 20. as well as the pending of the judgment herein annuled in the Court of Appeals which has been rendered moot. and other objections to jurisdiction not based on the contention that there is an absolute want of jurisdiction of the subject matter. Thus. took no part.S. as by a counterclaim. He even cited the very provision of the Revised Rules of Court. 130 citing 21 C. or conduct amounting to a general appearance. the judgment of the Court of Appeals is reversed and another one is entered declaring the order of default dated February 29. justice and equity. (Chairman). 1972 null and void. The Court of First Instance of Manila in its order dated Dcember 22. (Record on Appeal. and the cases supporting his application. JJ. after dismissing the complaint and lifting the writ of preliminary attachment. 1. at this point in time. in his Revised Rules of Court. for otherwise his claim will forever be barred. . 82-86) In other words.J. Makasiar. Muñ. SO ORDERED. still when the latter filed a motion for reconsideration of the judgment by default. be seeking an affirmative relief from the court. We agree with the petitioners that the Court of Appeals erred in not dismissing the complaint with respect to the petitioner Pioneer Insurance & Surety Corp. Rule 57. 20 to justify his application. Vol. 12 SCRA 557. or voluntary submission. p.. writes that: Objections to lack of jurisdiction of the person.. 1970. 1971 at 8:30 a. Sec. and was granted by the court the opportunity to prove damages against the bond of the surety company. December 3.m. 1970. defendant Rodriguez waived the lack of jurisdiction on his person. Francisco. to jurisdiction. Martin and Fernandez. defendant Rodriguez sought that judgment be rendered against the surety for such amount of damages as may be proved or established by him. Palacio. are waived by invoking the court's jurisdiction. In Soriano v. concur. Teehankee. 12069 of the Court of First Instance of Cebu).

and in Eloisa's official capacity as President. a restaurant owned and managed by [Tirreno]. FBDC found need to send Tirreno a written notice of termination dated 19 September 2000 due to Tirreno's alleged failure to settle its outstanding obligations. Metro Manila.5 million to Tirreno. Lauraya. LAURAYA. On 4 March 2002. Lien on the Properties of the Lessee Upon the termination of this Contract or the expiration of the Lease Period without the rentals.: The Case This is a petition for review on certiorari1 of the Orders issued on 7 March 20032 and 3 July 20033 by Branch 59 of the Regional Trial Court of Makati City (trial court) in Civil Case No. WARRANTIES: The MORTGAGOR hereby declares and warrants that: FORT BONIFACIO DEVELOPMENT CORPORATION petitioner. Eloisa. FBDC served on the sheriff an affidavit of title and third party claim. b. Tirreno began to default in its lease payments in 1999.91. Yllas Lending Corporation and Jose S. The RTC of Pasig City dismissed Tirreno's complaint for forum-shopping.027. Tirreno was already in arrears byP5. the LESSOR shall have the right to retain possession of the properties of the LESSEE used or situated in the Leased Premises and the LESSEE hereby authorizes the LESSOR to offset the prevailing value thereof as appraised by the LESSOR against any unpaid rentals. and any and all interest therein. and Section 22.Phase 1 of the Bonifacio Global City in Taguig. FBDC executed a lease contract in favor of Tirreno.337. YLLAS LENDING CORPORATION and JOSE S.4 In the Deed of Chattel Mortgage. On the same day. The trial court's orders dismissed Fort Bonifacio Development Corporation's (FBDC) third party claim and denied FBDC's Motion to Intervene and Admit Complaint in Intervention. In their complaint. Eighteen (18) items of paintings made by Florentine Master. respondents filed a complaint for Foreclosure of Chattel Mortgage with Replevin. 01-1452. and Antonio D. the lessor shall have the right to: (i) Terminate this Contract immediately upon written notice to the LESSEE. J. The pertinent portion of Section 20 reads: Section 20. which are fixtures in the above-named restaurant. FBDC also appropriated the equipment and properties left by Tirreno pursuant to Section 22 of their Contract of Lease as partial payment for Tirreno's outstanding obligations. vs. Tirreno used the leased premises for Savoia Ristorante and La Strega Bar. (respondents) caused the sheriff of Branch 59 of the trial court to serve an alias writ of seizure against FBDC. On 9 November 2000. Tirreno. Inc. which is about the lien on the properties of the lease. if any. Default of the Lessee 20. FBDC entered and occupied the leased premises. in case of default of the LESSEE. and Antonio made the following warranties to respondents: 1. The parties had the lease contract notarized on the day of its execution. If the LESSOR does not want to use said properties. FBDC found out that on 27 September 2001. The Facts On 24 April 1998. Eloisa. respondents alleged that they lent a total of P1. Goodwill over the aforesaid restaurant. . on the other hand. FBDC and Tirreno entered into a settlement agreement on 8 August 2000. charges and/or damages. in their personal and individual capacities. By July 2000. against Tirreno. Eloisa and Antonio executed a Deed of Chattel Mortgage in favor of respondents as security for the loan.R. logo. Tirreno filed an action for forcible entry against FBDC before the Municipal Trial Court of Taguig. Tirreno also filed a complaint for specific performance with a prayer for the issuance of a temporary restraining order and/or a writ of preliminary injunction against FBDC before the Regional Trial Court (RTC) of Pasig City.2 Without prejudice to any of the rights of the LESSOR under this Contract. in his official capacity as President. in his official capacity as President. Gino Tili. reads: Section 22. xxx 20. No. which is about the consequences in case of default of the lessee. charges and/or damages. Eloisa Poblete Todaro (Eloisa). business sign.Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G. and Antonio. 2008 xxx Section 22. without need of any judicial action or declaration. docketed as Civil Case No. Furniture. The following properties are covered by the Chattel Mortgage: a. Two provisions in the lease contract are pertinent to the present case: Section 20. charges and/or damages. respondents. 01-1452. Todaro (Antonio). The details and descriptions of the above items are specified in Annex "A" which is hereto attached and forms as an integral part of this Chattel Mortgage instrument. being fully paid or settled. Fixtures and Equipment of Savoia Ristorante and La Strega Bar. including its business name. On 29 September 2000. Despite the execution of the settlement agreement. 158997 October 6. Tirreno.1 The LESSEE shall be deemed to be in default within the meaning of this Contract in case: (i) The LESSEE fails to fully pay on time any rental. inclusive of the leasehold right of [Tirreno] over its rented building where [the] same is presently located. it may instead sell the same to third parties and apply the proceeds thereof against any unpaid rentals. c. utility and service charge or other financial obligation of the LESSEE under this Contract. DECISION CARPIO. (Tirreno) over a unit at the Entertainment Center .

Likewise. to wit: 1) [FBDC's] Third-Party Claim over the properties of [Tirreno] which were seized and delivered by the sheriff of this Court to [respondents]. b. In ruling on FBDC's motion for leave to intervene and to admit complaint in intervention. the trial court stated the facts as follows: Before this Court are two pending incidents.027. FBDC cannot assert that its right is superior to respondents. (2) . (3) . FBDC. [FBDC's] Third Party Claim is hereby DISMISSED. the sheriff proceeded with the seizure of certain items from FBDC's premises.'s] properties found in the premises and sold those which were not of use to it. [respondents]. The MORTGAGOR is the absolute owner of the above named properties subject of this mortgage.Main Murano Chandelier B.11 FBDC filed a motion for reconsideration on 9 May 2003.Uni-Air Split Type 1HP Air Cond. Third party claimant. the Motion to Intervene and Admit Complaint in Intervention is DENIED. Section 22 provides for the automatic appropriation of the properties owned by Tirreno in the event of its default in the payment of monthly rentals to FBDC. who are the mortgagees of the disputed properties. The sheriff's partial return indicated the seizure of the following items from FBDC: A. x x x FBDC took possession of [Tirreno. (56) . FBDC filed the present petition before this Court to review pure questions of law.Table (2) . [Respondents] contend that the stipulation of the contract of lease partakes of a pledge which is void under Article 2088 of the Civil Code for being pactum commissorium. filed an action for foreclosure of the chattel mortgage with replevin and caused the seizure of the same properties which [FBDC] took and appropriated in payment of [Tirreno's] unpaid lease rentals. the trial court stated that the present case raises the questions of who has a better right over the properties of Tirreno and whether FBDC has a right to intervene in respondents' complaint for foreclosure of chattel mortgage. EQUIPMENT (13) . Therefore. FBDC argued that when respondents and Tirreno entered into the chattel mortgage agreement on 9 November 2000. xxx By reason of the failure of [Tirreno] to pay its lease rental and fees due in the amount of P5. Since Section 22 is void. Agana9 to justify its ruling that FBDC should have filed a separate complaint against respondents instead of filing a motion to intervene. likewise filed a Motion to Admit its Complaint-in-Intervention.Smaller Murano Chandeliers (1) . The trial court quoted from Bayer Phils.7 The Ruling of the Trial Court In its order dated 7 March 2003. and 2) FBDC's Motion to Intervene and to Admit Complaint in Intervention. free from all liens and encumbrances. FBDC took possession of the leased premises and proceeded to sell to third parties the properties found therein and appropriated the proceeds thereof to pay the unpaid lease rentals of [Tirreno]. after having notified [Tirreno] of the termination of the lease.10 The dispositive portion of the trial court's decision reads: WHEREFORE.boxes .Chairs (1) . In deciding against FBDC. The trial court denied FBDC's motion for reconsideration in an order dated 3 July 2003. and/or pending transaction.337.a.91. FBDC. construing Section 17 of Rule 39 of the Revised Rules of Court (now Section 16 of the 1997 Rules on Civil Procedure). The trial court quoted from Bayer as follows: In other words. as mortgagee of said properties.Uni-Air Split Type 2HP Air Cond.2(i) and 22 of the Contract of Lease executed by [FBDC] with Tirreno. it cannot vest title of ownership over the seized properties.5 Despite FBDC's service upon him of an affidavit of title and third party claim. In Opposition to the third-party claim and the motion to intervene. the trial court declared that Section 22 of the lease contract between FBDC and Tirreno is void under Article 2088 of the Civil Code. FIXTURES (2) . [respondents] posit that the basis of [FBDC's] third party claim being anchored on the aforesaid Contract [of] Lease is baseless. FBDC questioned the propriety of the seizure and delivery of the properties to respondents without an indemnity bond before the trial court. the rights of third-party claimants over certain properties levied upon by the sheriff to satisfy the judgment may not be taken up in the case where such claims are presented but in a separate and independent action instituted by the claimants. Moreover. Meanwhile. There exist no transaction or documents affecting the same previously presented for.Uni-Air Window Type 2HP Air Cond. premises considered. v.8 The trial court stated that Section 22 of the lease contract pledges the properties found in the leased premises as security for the payment of the unpaid rentals. Pursuant to said Contract of Lease. Tirreno no longer owned the mortgaged properties as FBDC already enforced its lien on 29 September 2000. The Issues FBDC alleges that the trial court erred in the following: .Kitchen equipments [sic]6 The sheriff delivered the seized properties to respondents. anchors its claim over the subject properties on Sections 20.

does not arise just because FBDC has means of collecting past due rent from Tirreno other than direct payment. or dation in payment. or public policy. FBDC admits that it took Tirreno's properties from the leased premises without judicial intervention after terminating the Contract of Lease in accordance with Section 20. Court of Appeals upheld the validity of a forfeiture clause as follows: A provision which calls for the forfeiture of the remaining deposit still in the possession of the lessor. charges and/or damages. A lease contract may be terminated without judicial intervention.Philippine National Bank v. a void stipulation in a pledge contract. the LESSOR shall have the right to retain possession of the properties of the LESSEE used or situated in the Leased Premises and the LESSEE hereby authorizes the LESSOR to offset the prevailing value thereof as appraised by the LESSOR against any unpaid rentals. contend that Section 22 constitutes a pactum commissorium. and (4) the thing pledged is placed in the possession of the creditor. charges. denied FBDC's intervention. in case of failure of the [lessee] to comply with the terms and conditions thereof. the properties are answerable for any unpaid rent or charges at any termination of the lease. Articles 2085 and 2093 of the Civil Code enumerate the requisites essential to a contract of pledge: (1) the pledge is constituted to secure the fulfillment of a principal obligation. Respondents. in the event of the termination or cancellation of the agreement by reason of the lessee's violation of any of the terms and conditions of the agreement is a penal clause that may be validly entered into. Resort to judicial action is necessary only in the absence of a special provision granting the power of cancellation. Such a deposit may also be construed as a guarantee of payment. (2) the pledgor is the absolute owner of the thing pledged. v. however. we allowed the forfeiture of the lessee's advance deposit of lease payment. and any contrary stipulation is void. morals. as the alienation of property to the creditor in satisfaction of a debt in money.12 The Ruling of the Court The petition has merit. being fully paid or settled. the fourth requisite. Forfeiture of the properties is the only security that FBDC may apply in case of Tirreno's default in its obligations. If the LESSOR does not want to use said properties. By agreement between FBDC and Tirreno. On the other hand. charges and/or damages. We agree with FBDC. FBDC. is absent.14 A lease contract may contain a forfeiture clause. Taking of Lessee's Properties without Judicial Intervention We reproduce Section 22 of the Lease Contract below for easy reference: Section 22. it may instead sell the same to third parties and apply the proceeds thereof against any unpaid rentals. . as when the possession of the thing is merely given to the creditor by way of security. gives FBDC a means to collect payment from Tirreno in case of termination of the lease contract or the expiration of the lease period and there are unpaid rentals. or damages. states that Section 22 is merely a dacion en pago. Tirreno is the absolute owner of the said properties. and 3. that the thing pledged is placed in the possession of the creditor. Such agreement is not contrary to law. Dismissing FBDC's third party claim upon the trial court's erroneous interpretation that FBDC has no right of ownership over the subject properties because Section 22 of the contract of lease is void for being a pledge and a pactum commissorium.15 In Country Bankers. good customs. Country Bankers Insurance Corp. Tirreno's personal properties are in FBDC's real property because of the Contract of Lease. thereby cancelling the contract of sub-lease. or of a third person by common agreement.2. Since Section 22 is not a contract of pledge. The existence of a contract of pledge. as worded. which gives Tirreno possession of the personal properties. without prejudice to any other obligation still owing. charges and/or damages. there being nothing in the law proscribing such kind of agreement. Lien on the Properties of the Lessee Upon the termination of this Contract or the expiration of the Lease Period without the rentals. Consing v. and the persons representing Tirreno have legal authority to constitute the pledge. therefore necessary because of the express stipulation in the contract of [lease] that the [lessor]. there is no pactum commissorium. and did not require the posting of an indemnity bond for FBDC's protection. and thus answerable for any unpaid rent or charges still outstanding at any termination of the lease. Pineda13 held that dation in payment requires delivery and transmission of ownership of a thing owned by the debtor to the creditor as an accepted equivalent of the performance of the obligation. The trial court concluded that Section 22 constitutes a pledge because of the presence of the first three requisites of a pledge: Tirreno's properties in the leased premises secure Tirreno's lease payments. Article 1245 of the Civil Code defines dacion en pago. 2. There is non-compliance with the fourth requisite even if Tirreno's personal properties are found in FBDC's real property. Depriving FBDC of its properties without due process of law when the trial court erroneously dismissed FBDC's third party claim. FBDC further justifies its action by stating that Section 22 is a forfeiture clause in the Contract of Lease and that Section 22 gives FBDC a remedy against Tirreno's failure to comply with its obligations. Jamandre upheld the validity of a contractually-stipulated termination clause: This stipulation is in the nature of a resolutory condition. xxx Judicial permission to cancel the agreement was not. we allow FBDC's forfeiture of Tirreno's properties in the leased premises. FBDC claims that Section 22 authorizes FBDC to take whatever properties that Tirreno left to pay off Tirreno's obligations. as well as the trial court. However. Article 2088 of the Civil Code prohibits the creditor from appropriating or disposing the things pledged. (3) the persons constituting the pledge have the free disposal of their property or have legal authorization for the purpose. Dacion en pago is governed by the law on sales. Section 22. In the same manner. on the other hand. A penal clause is an accessory obligation which the parties attach to a principal obligation for the purpose of insuring the performance thereof by imposing on the debtor a special prestation (generally consisting in the payment of a sum of money) in case the obligation is not fulfilled or is irregularly or inadequately fulfilled. for upon the exercise by the [lessor] of his right to take possession of the leased property. if any. can take-over the possession of the leased premises. There is no dation in payment when there is no transfer of ownership in the creditor's favor.1. This kind of contractual stipulation is not illegal. the contract is deemed terminated. Denying FBDC intervention on the ground that its proper remedy as third party claimant over the subject properties is to file a separate action.

contrary to respondents' contentions. FBDC filed for intervention during the trial. The burden to establish a valid justification for that action lies with the plaintiff [mortgagee]. A third party claimant under Section 14 of Rule 57 (Preliminary Attachment)18 of the 1997 Rules of Civil Procedure. insists that a third party claimant may vindicate his rights over properties taken in an action for replevin by intervening in the replevin action itself. The third party in Bayer filed his claim during execution. like the debtor or the 16 mortgagor himself. did not mention the indemnity bond in its Orders dated 7 March 2003 and 3 July 2003. Satisfaction and Effect of Judgments)17 of the 1997 Rules of Civil Procedure may vindicate his claim to the property in a separate action. the chattel mortgage that. FBDC's intervention in the present case will result in a complete adjudication of the issues brought about by Tirreno's creation of multiple liens on the same properties and subsequent default in its obligations. which the sheriff was making and for which the sheriff was directly responsible to the third party. the inclusion of other parties.20 (Emphasis added) FBDC exercised its lien to Tirreno's properties even before respondents and Tirreno executed their Deed of Chattel Mortgage. We agree with FBDC. v. on the other hand. which makes the Bayer ruling inapplicable to the present case. Since the mortgagee's right of possession is conditioned upon the actual default which itself may be controverted. Because of the absence of the indemnity bond in the present case.19 We allow FBDC's intervention in the present case because FBDC satisfied the requirements of Section 1. However. nor entitled to. with leave of court. or prevent the defendant from destroying the same during the pendency of the suit. both respondents and the trial court overlooked the circumstances behind the ruling in Bayer. A third party claimant under Section 16 of Rule 39 (Execution. on the other hand. the possession of the property. Moreover. However. in the present case. . unlike a pledgee. may be required in order to allow a full and conclusive determination of the case. 01-1452 dismissing Fort Bonifacio Development Corporation's Third Party Claim and denying Fort Bonifacio Development Corporation's Motion to Intervene and Admit Complaint in Intervention. can properly uphold the right to replevy the property. Both the trial court and respondents relied on our ruling in Bayer Phils. be allowed to intervene in the action. Fort Bonifacio Development Corporation may hold the Sheriff liable for the seizure and delivery of the properties subject of this case because of the lack of an indemnity bond. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. the sheriff is not obligated to turn over to respondents the properties subject of this case in view of respondents' failure to file a bond. We REINSTATE Fort Bonifacio Development Corporation's Third Party Claim andGRANT its Motion to Intervene and Admit Complaint in Intervention. may vindicate his claim to the property by intervention because he has a legal interest in the matter in litigation. Rule 57. Agana to justify their opposition to FBDC's intervention and to insist on FBDC's filing of a separate action. Rule 19 (Intervention) of the 1997 Rules of Civil Procedure. refers to the attachment bond to assure the return of defendant's personal property or the payment of damages to the defendant if the plaintiff's action to recover possession of the same property fails.A person who has a legal interest in the matter in litigation. Indeed. in order to protect the plaintiff's right of possession of said property. FBDC may also hold the sheriff for damages for the taking or keeping of the properties seized from FBDC. we declared that the rights of third party claimants over certain properties levied upon by the sheriff to satisfy the judgment may not be taken up in the case where such claims are presented. In Bayer. Who may intervene. which reads as follows: Section 1. it could become essential to have other persons involved and accordingly impleaded for a complete determination and resolution of the controversy. Moreover. The timing of the filing of the third party claim is important because the timing determines the remedies that a third party is allowed to file. nothing in the Rules proscribes intervention. where the mortgagee's right to possession is put to great doubt. as when a contending party might contest the legal bases for mortgagee's cause of action or an adverse and independent claim of ownership or right of possession is raised by the contending party. we GRANT the petition. The trial court's objection against FBDC's intervention has been set aside by our ruling that Section 22 of the lease contract is not pactum commissorium. simply because the mortgagee brings up an action for replevin. Pursuant to Section 14 of Rule 57. Under Section 14 of Rule 57. and whether or not the intervenor's rights may be fully protected in a separate proceeding. although permissible. on the other hand. but in a separate and independent action instituted by the claimants. the purpose of the bond is to indemnify the sheriff against any claim by the intervenor to the property seized or for damages arising from such seizure. among other things. The bond in Section 14 of Rule 57 (proceedings where property is claimed by third person) is different from the bond in Section 3 of the same rule (affidavit and bond). When the mortgagee seeks a replevin in order to effect the eventual foreclosure of the mortgage. WHEREFORE. Although intervention is not mandatory. SO ORDERED. Respondents agree with the trial court's ruling that FBDC's proper remedy is not intervention but the filing of a separate action. let alone be bound by the terms of the chattel mortgage contract. we ruled in BA Finance Corporation v. need not be in. or an interest against both. . cannot just be deprived of his possession. but also the mortgagor's default on. Thus: A chattel mortgagee. the action need only be maintained against the possessor of the property. An adverse possessor. is not an absolute right. who is not the mortgagor. Sheriff's Indemnity Bond FBDC laments the failure of the trial court to require respondents to file an indemnity bond for FBDC's protection. The trial court. because intervention is no longer allowed as judgment has already been rendered. or in the success of either of the parties. We SET ASIDE the Orders dated 7 March 2003 and 3 July 2003 of Branch 59 of the Regional Trial Court of Makati City in Civil Case No. FBDC.Intervention versus Separate Action Respondents posit that the right to intervene. Section 3. unless and until the mortgagor defaults and the mortgagee thereupon seeks to foreclose thereon. FBDC is adversely affected by the disposition of the properties seized by the sheriff. on the other hand. or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may. it is not only the existence of. respondents allege that FBDC was accorded by the trial court of the opportunity to defend its claim of ownership in court through pleadings and hearings set for the purpose. Court of Appeals that where the mortgagee's right to the possession of the specific property is evident.

Gerarda G. . 1995 and an Answer 5 dated August 4. 14 Issue The main issue in this case is whether respondent sheriff is administratively liable for failing to release the property under custodia legis to the complainant in accordance with the order of the regional trial court. However. First Issue: Manner of Attachment A. xxx xxx xxx . No. Acting Court Administrator Reynaldo L.: Sheriffs play an important role in the administration of justice. Sheriff IV of the RTC of Cauayan. Tuliao of the Regional Trial Court of Cauayan. Isabela. 11 Despite the pendency of a motion for contempt 12 filed by complainant against respondent. 6D-57-51813 with Plate No. Branch 20 was filed by Santiago N. the counterbond of the defendant. and in view of the foregoing.M. 1994 because jurisdiction over the case had been transferred to the municipal trial court as mandated by Republic Act No. Salvador before the Tuguegarao Sub-Office (TUGSO) of the National Bureau of Investigation ("NBI"). Subsequently. Manner of attaching property. Represented by Lito D. through counsel. SALVADOR. 1995. 1997 NATIONAL BUREAU OF INVESTIGATION and SANTIAGO N. On November 24.00. 1996. in the absence of Ignacio. After the investigation. 1994. the latter filed with the Regional Trial Court of Cauayan. concurred with said recommendation. Instead. filed a motion to discharge attachment upon filing of a counterbond for the release of the vehicle in his favor. Branch 20 9 a suit for collection docketed as Civil Case No. Respondent refused to comply with the said order. 2 An investigation was conducted by Agentin-Charge Franklin Javier and Agent Raul A. Rule 57 of the Rules of Court provides: Sec. After receipt of respondent's Comment dated April 20. Santiago Salvador. He offers "to pay a fine in the discretion of the Honorable Court as he has not benefited any pecuniary interest (sic). to wit: 10 WHEREFORE. respondent sheriff failed to live up to these standards. After remitting the down payment. 8 Hence. execute all processes. 5. That it could no longer be returned to complainant's possession in accordance with the court's order was not his fault but that of the attaching creditor who had violated his obligation to produce the same whenever required by the court. entitled Pisces Motor Works. Ignacio vs. the complainant was forced to pay to an unnamed brother of the seller the amounts due for the months of April and May 1994. the case was dismissed 13 on August 31. Isabela. Chief of the NBI Legal and Evaluation Division. The Sheriff is hereby ordered to release to the defendant the attached vehicle bearing Motor No. report and recommendation. complainants. The Facts Complainant Salvador bought a passenger jeep from Lito G. 1995. inter alia. respondent. all the properties of the party against whom the order is issued in the province. 6 Atty. respondent sheriff refused to "submit himself to custodial investigation" before Agent Javier. We agree with the Court Administrator that respondent should be held administratively liable. to await judgment and execution in the action. Ignacio to be paid in monthly installments of P7. On July 13. thus. J. Galang. he submitted a Compliance 4 dated July 22. RODOLFO G. complainant diligently paid all monthly amortizations until March 1994 when. high standards are expected of them. Director Mariano M. UV BBR-127. Complainant.Republic of the Philippines SUPREME COURT Manila THIRD DIVISION motion with counterbond was filed. the filing of an administrative case with the Office of the Court Administrator. ³ The officer executing the order shall without delay attach. he released the passenger jeep to Ignacio after the latter had executed a receipt therefor together with an undertaking that he would produce the jeep whenever required by the court. . 1996. . and carry into effect the orders of the court with due care and utmost diligence. A complaint against Respondent Deputy Provincial Sheriff Rodolfo G. 1 As agents of the law. Mison of the NBI transmitted to this Court a copy of the evaluation with the recommendation that appropriate action be taken against respondent. Instead. In the present case. In a memorandum to the Chief Justice dated August 29. 7691 which expanded said court's jurisdiction. Suarez recommended a finding of guilt and suspension of respondent for six (6) months without pay. Respondent sheriff contends that his act of not taking into his official custody the attached property was not unlawful but was in fact reasonable because the court had no facility for its storage. is hereby approved. complainant gave his statement 3 to Agent Paul Gino Rivera. the Court referred the case to the Office of the Court Administrator for evaluation. a second This Court finds respondent sheriff's manner of attachment irregular and his reason therefor totally unacceptable." 15 The Court's Ruling Respondent's contentions are without merit.000. PANGANIBAN. Respondent justified such release by saying that the court had no storage building that would protect the jeep from damage or loss. vs. this administrative complaint now before us. P-96-1184 March 24.000.00 with a down payment of P50. Branch 20. TULIAO. Due to some defects in the aforementioned motion. Agents Javier and Ancheta recommended. They form an integral part thereof because they are called upon to serve court writs. Ancheta. Invoking his right to remain silent. 20-757. the brother failed to remit said amount to the seller. the decretal portion of which reads. 1994. Isabela. 7 On November 13. the trial court issued an order. an order was issued by the RTC directing respondent sheriff to attach the passenger jeep.

(Hollister vs. 21 Am." He cannot feign ignorance of this duty as he himself correctly cited an early decision of this Court explaining a sheriff's duty in attachment.. 451. This action. concur. IN VIEW OF THE FOREGOING. C. That he exerted efforts in going to the creditor's residence in Tuguegarao. 61. Davide. because it did not establish that the property was in respondent sheriff's substantial presence and possession. .Sec. it is his duty. 674. the officer levying it must take actual possession of the property attached as far as . 17 Contrary to respondent sheriff's contention. That Ignacio was able to move the passenger jeep to an unknown location is further proof that respondent sheriff had not taken and safely kept it in his substantial presence. 8 Conn.. did not mitigate his liability. There must be an actual taking of possession and placing of the attached property under the control of the officer or someone representing him.. under an arrangement satisfactory to himself. and must assert and. It exacts from him at all times respect for the rights of others and proscribes him from dispensing or extending undue favors on account of his office. The Court in Chan vs. Second Issue: Liability of a Sheriff A court employee should keep in mind that he is an integral part of that organ of the government that is involved in the sacred task of administering justice.. JJ. possession and control. put anyone in possession of the property for the purpose of guarding it. 231. He must put himself in (a) position to. Leaving the attached property in the possession of the attaching creditor makes a farce of the attachment. By acceding to the request of Ignacio. When a writ is placed in the hands of a sheriff. to proceed with reasonable celerity and promptness to execute it according to its mandate. 99 Ga. this does not mean that the attaching officer may not.. 216 SCRA 786 [1992]). Narvasa. Jones vs. St. Attachment of real and personal property. Rep. 59 Am. Cook. compelling the attaching creditor to release the property in question was not in order. Cagayan to obtain possession of the attached property was an act of compliance with the writ of attachment. Much less did it exculpate him from penalty. because the proper remedy provided by the Rules of Court was for the party whose property had been attached to apply for the discharge of the attachment by filing a counterbond. The attaching creditor was not authorized to have possession of the attached property. respondent's act of leaving the passenger jeep in the possession and control of the creditor did not satisfy the foregoing requirements of the Rules. . He could have deposited it in a bonded warehouse. 23 Respondent's pretense of having acted in utmost good faith for the preservation of the attached property is hardly credible because there was no reason for his having acted thus.J. . SO ORDERED. The note in the receipt that imposed on Ignacio the obligation to produce the same whenever required by the court was no compliance either. This is not compliance with the issuing court's order. as follows: 16 . 18 The effect of this remedy is the delivery of possession of the attached property to the party giving the counterbond. 24 His prerogatives did not give him any discretion to determine who among the parties was entitled to possession of the attacked property. Rep. in the absence of any instructions to the contrary. . 6713 requires of every public official and employee justness and sincerity in the discharge and execution of official duties. 332. . 55. to constitute a valid levy of an attachment.) Of course. but he can not in this way relieve himself from liability to the parties interested in said attachment. St. . 61. 7. Howard. in fact. 95 Ga. . (Corniff vs. Melo and Francisco. neither did it conform to the plainly worded RTC order. enforce a dominion over the property adverse to and exclusive of the attachment debtor. by taking and safely keeping it in his capacity. and such property must be in his substantial presence and possession. 51 Am. after issuing the corresponding receipt therefor. he is liable to the person in whose favor the process or writ runs. respondent sheriff actually extended an undue favor which prejudiced the complainant as well as the orderly administration of justice.. His claim that the regional trial court did not have any storage facility to house said property is no justification. respondent sheriff is hereby found administratively liable as charged and isSUSPENDED for six (6) months without pay with a warning that the commission of the same or similar acts in the future shall be dealt with more severely by this Court. he is unable to satisfactorily explain why he failed to take such movable in his control. practicable (under the circumstances). Goodale... . Duncan. 21 He is supposed to execute the order of the court strictly to the letter. A verbal declaration of seizure or service of a writ of attachment is not sufficient. . recording thereof ³ Properties shall be attached by the officer executing the order in the following manner: xxx xxx xxx (c) Personal property capable of manual delivery. contrary to the insistence of respondent sheriff. xxx xxx xxx Clearly. Dec.. .) We believe that . belated as it was. Respondent fell short of his obligation to take and safely keep the attached property "in his capacity. Jr. He exceeded his powers which were limited to the faithful execution of the court's orders and service of its processes. 19 Section 4(c) of Republic Act No. His conduct and behavior should perforce be circumscribed with the heavy burden of responsibility and must at all times be characterized by propriety and decorum. In sum. Castillo held: 20 Every officer or employee in the judiciary is duty bound to obey the orders and processes of the court without the least delay (Pascual vs. 22 If he fails to comply.

Jr. The antecedent facts of the case as found by the Court of Appeals are as follows: On March 24. Q-35128. the parties are hereby ordered to maintain the STATUS QUO in this case with respect to the properties attached and subject of this action alleged to belong to the plaintiffs" (Rollo. Castro rendered judgment by default in said Civil Case No. Navarro for private respondents. and effected a physical and actual count of . that being the absolute owners of the personal properties listed in their third party claim which were illegally seized from them they were willing to file a counterbond for the return thereof. No. Esteban B. inter alia: xxx xxx xxx That in the afternoon of April 12. WILSON TING. alleging among others. petitioners. Quezon City (the case was later assigned to the Regional Trial Court of Quezon City. 1990 c) 239 boxes of floor polishers marked "Sanyo" ESTEBAN B. Manila). 296 Palanca St.780. On the same day that petitioner Cabang filed his Partial Sheriffs Return (April 19.. 1982. In this second civil case. on May 5. a third party claim was filed by Wilson Ting and Yu Hon (private respondents herein) in the same Civil Case No. the same court issued a break-open order upon motion filed by petitioner Uy. damages. SP-05659 for certiorari and Prohibition with Preliminary Injunction and/or Restraining Order filed by petitioner seeking to annul and set aside the two Orders dated August 24. respondents. 1982. stating among other things. Q-34782. (herein petitioner) filed a complaint against Sy Yuk Tat for sum of money. On April 29.00 said court issued a writ of preliminary attachment and appointed Deputy Sheriff Nilo S. 1983 which have been attached and seized by defendant Cabang. 1982. Buencamino) issued an order on May 5. 1982. Quezon City ('the court a quo' for short) which case was docketed as Civil Case No. On April 6. 1982. where a judgment by default had been rendered. 1 982.R. Branch LII. The complaint alleged inter alia that the plaintiffs are the owners of the personal properties reflected in the Partial Sheriffs Return dated April 13. April 7. 1982) the third party claimants and Yu filed a motion to dissolve the aforementioned writ of preliminary attachment in the same Civil Case No.. 65 Speaker Perez St. as reflected in the Partial Sheriffs Return dated April 1 3. Q-34782 ("the first case" for short) in the then Court of First Instance of Rizal. Q34782. Branch 52. On the following day. No. Q-34782 in favor of plaintiff Uy. The third party claim specifically enumerated the properties.. UY JR. 1983 issued by the then Court of First Instance of Rizal Branch LII *** (now Regional Trial Court of Quezon City Branch XCLVll ****) in Civil Case No. the following: Considering that it will take time before this Court could act upon said prayers for the issuance of a Writ of Preliminary Injunction. p. and YU HON. belonging to the plaintiffs (private respondents herein). each. the undersigned together with Atty. Mallari & Associates for petitioners. On the same day. Elpidio G. then CFI Judge Jose P. each box containing 6 pcs. and NILO S. each. Uy. b) 229 boxes of Magnetic Blank Tapes with 48 pcs. Lupino Lazaro. d) 54 boxes of floor polishers marked "Ronson" xxx xxx xxx PARAS. On April 19. vs. 1982. 1982. 1982. and denying defendants' motion to dismiss. the first court issued an order striking off from the records all pleadings filed by the third party claimants. CABANG.Republic of the Philippines SUPREME COURT Manila SECOND DIVISION the items and merchandise pointed to by the Ting family as having been taken from the Mansion Emporium and nearby bodega which are as follows: a) 329 boxes of "GE" Flat Iron. with preliminary attachment. Q-35128 ('the second case' for short). which motion was opposed by plaintiff Uy. addressed to petitioner Cabang asserting ownership over the properties attached at No. 1982 and October 10. Cabang (co-petitioner herein) as Special Sheriff to implement the writ. E. 65 Speaker Perez St.: This is a petition for review on certiorari seeking to reverse the decision ** which dismissed CA-G. J. 133) Meanwhile. THE HONORABLE COURT OF APPEALS. plaintiff's counsel and the members of the same team proceeded to No. upon plaintiff filing a bond of P232. 83897 November 9. Quezon City. petitioner Cabang began to implement the writ of preliminary attachment as the Special Sheriff on the case. petitioner Cabang filed a Partial Sheriffs Return. granting a writ of preliminary attachment and directing the sheriff assigned therein to attach the properties of defendants Uy and Cabang (herein petitioners). Branch XCVII now presided over by respondent Judge). Quezon City (other than those attached at No. On April 12. G.R. in the first case. 1982. docketed as Civil Case No. third party claimants Wilson Ting and Yu Hon filed a complaint for Damages with application for preliminary injunction against Esteban Uy and Nilo Cabang (co-petitioners herein) in the then Court of First Instance of Rizal. Meanwhile. the court a quo (then presided over by CFI Judge Concepcion B. stating.P.

1982. filed an ex-parte motion for writ of execution which was granted the following day. sufficient to satisfy the applicants' demand. Meanwhile. Following an exchange of subsequent papers between the parties. motion to quash or dissolve the status quo order. Rule 57. defendants Uy and Cabang filed their answer with counterclaim. In its decision.. 190). 208) The main issue in this case is whether or not properties levied and seized by virtue of a writ of attachment and later by a writ of execution.. the court a quo issued the other disputed order which denied defendant Uy's motion to dismiss on October 10. petitioners Esteban Uy.. Rollo.. p... certain personal properties had been sold to plaintiff Esteban Uy. 1 982. on the ground that the properties under custodia legis were perishable especially those taken from No.With respect to the case in the court a quo. denying petitioners' motion to quash the writ of preliminary attachment. defendant Uy filed an urgent motion to quash and/or dissolve preliminary attachment which motion was opposed by plaintiffs Ting and Yu Hon. 65 Speaker Perez. Defendant Uy filed a motion for reconsideration on both Orders. .070.000. 1982. and the sheriff assigned to this court.. p. 1982. we hereby deny the instant petition. Quezon City. in the same case a quo. The motion to quash was also denied by the court a quo on December 9. the Court gave due course to the petition and required both parties to submit simultaneous memoranda within thirty days from notice (Rollo. No pronouncement as to cost. removed . the winning bidder for P15. plaintiffs Ting and Yu Hon filed a motion for preliminary attachment alleging this ground: "In the case at bar. in the first case. 1982. denying petitioners' motion to dismiss the complaint a quo. is one 'to recover possession of personal properties unjustly detained. 1982. defendant Uy filed a motion for preliminary hearing on affirmative defenses as motion to dismiss. Back to the case a quo. and the order dated October 10. plaintiff Uy in the first case filed his ex parte motion to authorize Sheriff to sell the attached properties enumerated in Sheriff Cabang's partial return filed on April 19. 247) On August 31. 109-122) Thereafter. 94 [1951]) where the Court filed that while it is true that property in custody of the law may not be interfered with. the first case on July 12. (CA decision. Ramos (88 Phil. which shall be furnished to each of the defendants with copies of the verified application therewith. has been . this rule is confined to cases where the property belongs to the defendant or one in which the defendant has proprietary interests. June 8.000. Jr. issued the disputed order granting the writ of preliminary attachment prayed for by the plaintiffs (Wilson Ting and Yu Hon). and that in the public auction sale held on July 6. Subsequently. 97 Industrial Avenue. in the case a quo the court denied defendants'. 1982) that plaintiff Uy filed his exparte motion for writ of execution he and Cabang filed a motion to quash or dissolve status quo order in the case a quo as defendants therein on the ground that the court "has no jurisdiction to interfere with properties under custodia legis on orders of a court of co-equal and co-ordinate jurisdiction" and that plaintiffs' complaint is not for recovery of properties in question. Malabon Manila as the highest bidder.. 1983. In the resolution of October 16. the dispositive portion of which reads: WHEREFORE. 1983. Danilo Del Mundo. p. . shall forthwith attach such properties of the defendants not exempt from execution. 1982.. on August 24. were under custodia legis and therefore not subject to the jurisdiction of another co-equal court where a third party claimant claimed ownership of the same properties. 192) while petitioners filed their memorandum on January 5. without the permission of the proper court. Rules of Court) Acting on such motion the court a quo. The issue has long been laid to rest in the case of Manila Herald Publishing Co. 132-133) Hence. 1982. p.. 1982. Finally. 1989. on August 23. On June 24. 1982. (and) disposed of to prevent its being found or taken by the applicant or an officer" and/or said defendants are guilty of fraud in disposing of the property for the taking. the rule does not apply and interference with his custody is not interference with another court's order of attachment. on February 21. Private respondents filed their memorandum on December 6. Uy and Cabang. on July 2. Cabang filed another partial sheriffs return this time stating among others that the judgment in that case had been partially satisfied. On the same day (June 7.00 while the other properties were sold in the amount of P200. acting beyond the bounds of his office seizes a stranger's property. Meanwhile. 1983. on February 15.00.. 1(c) and (d).00 in cash with Bernabe Ortiz of No. and therefore dismiss the same. Northern Hill. stating that: Let a writ of preliminary attachment issue upon the plaintiffs putting up a bond in the amount of P1. 1982.. finding respondent Judge not to have committed a grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the order dated August 24. of which the action is brought (Sec. (Rollo. 1989 (Ibid. About half a year later. plaintiff Uy on June 7. which.. the Court of Appeals dismissed the petition. 1990 (Ibid. (or) detention . respondent Judge issued two Orders denying both motions for reconsideration. Inc. pp. the instant petition. the property. and Nilo Cabang filed with the Court of Appeals a petition for Certiorari and Prohibition with prayer for a Writ of Preliminary Injunction or a Restraining Order to annul and set aside the two orders issued by the then CFI of Rizal Branch 52. p. Jr. But when the Sheriff. in the case a quo.430. 1982. (Rollo. 1985. v.

he stated that on the same occasion referred to in his Partial Return.A. The foregoing ruling was reiterated in the later case of Traders Royal Bank v. upon the filing of such bond as may be necessary. Inc. Garcia for petitioners. no grave abuse of discretion can be ascribed to respondent Judge in the issuance of a writ of attachment without notice to petitioners as there is nothing in the Rules of Court which makes notice and hearing indispensable and mandatory requisites in its issuance. As clearly explained by this Court. where in the report of said Sheriff made earlier on April 6. As to petitioner's contention that the complaint filed by private respondent in the lower court is merely seeking an ancillary remedy of injunction which is not a cause of action itself. If this is so. 69 SCRA 45 [1976]). SO ORDERED. ADLAWAN. 57 Phil. respondents. 168 SCRA 513 [1988]). Ramos. No.. 1989).R. INC. JJ. Thus. J. Aguirre-Paderanga for Aboitiz & Co.R. Burgos. The other issues in this case deserve scant consideration. the Court states that the rules of procedure are intended to promote not to defeat substantial justice. Finally. ABOITIZ & COMPANY. As found by the Court of Appeals. (Pan-Am Airways v. IAC (133 SCRA 141 [1984]) and even more recently in the case of Escovilla v. Inc. petitioners. This is self-evident. Nos. DAVAO. January 13. G. private respondents denied Sy Yuk Tat's ownership over the goods in question. where this Court stressed: The power of the court in the execution of judgments extends only over properties unquestionably belonging to the judgment debtor. Should a third party appear to claim the property levied upon by the sheriff. as Presiding Judge of Branch 6. 151 SCRA 631 [1987]. the Court relaxed the rigid interpretation of the Rules holding that a straight-jacket application will do more injustice. the procedure laid down by the Rules is that such claim should be the subject of a separate and independent action. 72 SCRA 388 [1976]). The undeviating ruling of this Court in such cases is that attachment and sale of properties belonging to a third person is void because such properties cannot be attached and sold at public auction for the purpose of enforcing a judgment against the judgment debtor. the non-joinder of the husband of private respondent. there is no argument that the life span of the status quoorder automatically expires on the 20th day and no judicial declaration to that effect is necessary (Paras v. TORRES. Inc. Dicdican and Sylva G. 84497. the sale of the disputed properties at the public auction. it must be admitted that the judge trying such action may render judgment ordering the sheriff or whoever has in possession of the attached property to deliver it to the plaintiff claimant or desist from seizing it. 1007 [1932-33]). Pablo P. he acts beyond the limits of this authority. and therefore. Regional Trial Court Cebu City. 1994 ELEAZAR V. Inopiquez. (Orosco v.Under the circumstances. Isaias P. The levy by the sheriff of a property by virtue of a writ of attachment may be considered as made under the authority of the court only when the property levied upon belongs to the defendant. supra). Judge RAMON AM. Nepomuceno. and THE PROVINCIAL SHERIFFS OF CEBU. this Court categorically stated: It has been seen that a separate action by the third party who claims to be the owner of the property attached is appropriate. QUIASON. Sarmiento and Regalado. Relova. Toledo v. v. In like manner. petitioner's motion to quash or discharge the questioned attachment in the court a quo is in effect a motion for reconsideration which cured any defect of absence of notice. to release the property pending final adjudication of the title. Hon. vs. RIZAL and METRO MANILA. C. But such fact is of no consequence in so far as the propriety of the questioned attachment is concerned. Belisle Investment & Finance Co. Respectively. 1989. (Filinvest Credit Corp. Padilla. v. v. they should not be applied in a very rigid and technical sense. concur. Melencio-Herrera (Chairperson). the grounds invoked by respondents for said attachment did not depend at all upon the continuing efficacy of the restraining order. (Rollo. Fernandez. 1982. ADLAWAN and ELENA S. 117 SCRA 420 [1982]. Again on another occasion where an appeal should have been dismissed for non-compliance with the Rules. This Court frowns on the resort to technicalities to defeat substantial justice. Jurisdiction over an action includes jurisdiction on interlocutory matter incidental to the cause and deemed necessary to preserve the subject matter of the suit or protect the parties' interests.R. 163 SCRA 1 [1988]). (Manila Herald Publishing Co. It follows further that the court may make an interlocutory order. 203204). State Investment House. G. Espiritu. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G. The court issuing a writ of execution is supposed to enforce its authority only over properties of the judgment debtor. In addition. (Angel v..: . in satisfaction of a judgment of a co-equal court does not render the case moot and academic. 65957-58 July 5. Roura. the petition is hereby DENIED and the assailed decision of the Court of Appeals is hereby AFFIRMED. Yu Hon as well as her failure to verify the complaint does not warrant dismissal of the complaint for they are mere formal requirements which could be immediately cured without prejudice to the rights of the petitioners. November 6. If he attaches properties other than those of the defendant. the Court of Appeals correctly observed that the object of private respondents' complaint is injunction although the ancillary remedy of preliminary injunction was also prayed for during the pendency of the proceeding. Inc. pp. (Dormitorio v. Estoppel is likewise unavailing in the case at bar by the mere fact that private respondent Ting (complainant in the court a quo) pointed the items and merchandise taken from the Mansion House and nearby Bodega which were levied and hauled by Special Sheriff Cabang. PREMISES CONSIDERED. 66712. Neither can petitioner complain that they were denied their day in court when the Regional Trial Court issued a writ of preliminary attachment without hearing as it is well settled that its issuance may be made by the court ex parte. On the issue of the expiration of the restraining order.

pp. 1990 that since attachment is an ancillary remedy. Adlawan without prejudice to the outcome of the cases filed by both parties (Rollo. 65-66). CEB-1185. The Third Division of this Court ruled on April 3. 1982. 1983 of respondent Judge Ramon Am. this Court rules that the attached properties left in the custody of private respondent Aboitiz and Company. Cebu City. Inc. 37). Respondent Aboitiz filed a motion for reconsideration of the decision.08.000. Rule 17 of the Revised Rules of Court. Alleging that while his office was situated in Cebu City. It was the Sheriff of Davao City who enforced the writ of attachment. Branch 16 ordered the seizure and delivery of the property described in the complaint. No. Civil Case No. the Third Division stated that "the properties to be returned to petitioner are only those held by private respondent (Aboitiz) by virtue of the writ of attachment which has been declared non-existent. defendants executed a real estate mortgage covering eleven (11) parcels of land in favor of Philippine Commercial and Industrial Bank (PCIB) to secure a P1. On December 20. The denial of his omnibus motion led petitioner Eleazar Adlawan to file a petition for certiorari and mandamus in the Supreme Court (G.000. the dispositive portion of the April 3. and considering all pending incidents in the case as moot and academic.This is a petitioner for certiorari and mandamus with preliminary injunction or restraining order to nullify: (1) the Order dated September 14." Accordingly. 1990 decision of the Third Division of this Court was modified to read as follows: WHEREFORE. Petitioner Eleazar Adlawan filed an omnibus motion praying for the reconsideration and dissolution of the writ of seizure. but that was not to be. 1982. which granted the motion for the issuance of writs of preliminary attachment for the seizure of the property of petitioners by respondent Provincial Sheriffs. 324). Said property were later delivered by the provincial sheriff to respondent Aboitiz. Branch 6. which indebtedness as of June 30. R-21761). Paragraph 15 of the complaint is similarly worded as paragraph 16 of the complaint in Civil Case No. This should have terminated the controversy between petitioners and respondent Aboitiz insofar as the Supreme Court was concerned. 1982 filed with the Court of First Instance of Cebu. In the replevin suit.R. be returned to petitioner Eleazar V. and (3) the unpaid installments of the equipment provided by respondent Aboitiz to petitioners (Rollo. the Executive Judge of the Court of First Instance of Cebu. The complaint in Civil Case No. 1983 of Judge Emilio A. 1983 respondent Aboitiz filed against petitioners two complaints for collection of sums of money with prayers for the issuance of writs of attachment in the Regional Trail Court. an order directing the issuance of the writ of preliminary attachment against the property of petitioners upon the filing by respondent Aboitiz of an attachment bond. Branch 23. Petitioner Eleazar Adlawan filed a motion praying that the July 6. respondent Aboitiz filed a second motion for reconsideration with a prayer that the dispositive portion of the decision be clarified. Torres of the Regional Trial Court.00. CEB-1185 and Civil Case No. Branch 11 issued an order confirming the notice of dismissal.430. contending that the replevin case was distinct and separate from the case where the writ of attachment was issued. 63225). the Lapu-lapu City court should not entertain the action for replevin. Finding merit in the motion to set aside the writ.000. Cebu City. which indebtedness as of June 30. 63225 having become final and executory. Respondent Aboitiz filed an urgent ex parte motion. resulting in the seizure of heavy construction equipment. CEB-1186 alleged that petitioner Eleazar Adlawan (defendant therein) was awarded a contract for the construction of the Lasang River Irrigation Project by the National Irrigation Administration and that respondent Aboitiz (plaintiff therein) loaned him money and equipment. 1990. 619-L be continued in custodia legis of said court pending litigation therein. the Court disposed of the case as follows: WHEREFORE. CEB-1185 and the Order dated September 26. Branch 11 denied the motion on account of the filing by respondent Aboitiz before Branch 16 of the Court of First Instance of Cebu in Lapu-lapu City of an action for delivery of personal property (Civil Case No. motor vehicle spare parts. 1983 totalled P5. the withdrawal of the complaint left it with no leg to stand on. however.259. 619-L). It argued that the writ of replevin. therefore. and the filing by petitioner Eleazar Adlawan before Branch 10 of the same court of an action for damages in connection with the seizure of his property under the writ of attachment.370. The said court also granted the motion of respondent Aboitiz to take possession and custody of the attached property of petitioners and ordered the Provincial Sheriff of Davao to deliver the property to respondent Aboitiz. denied with finality in the Resolution of July 11.14. p. the discharge of the property levied upon. (Rollo. (Aboitiz) sought to collect from petitioners a sum of money representing payments for: (1) the unpaid amortizations of a loan. . Branch 11 ordered on July 6. he filed a motion for reconsideration which was not granted. Torres in the consolidated cases. docketed as Civil Cases Nos. and therefore. CEB-1186. consequently. and other personal property with the aggregate value of P15. the retrieval of the property seized. in Civil Case No. in view of the foregoing. (Civil Case No. and (2) the Order dated December 12.672. Jacinto of Branch 23 of the same court in Civil Case No. 1982 Order be implemented and enforced. in view of the foregoing. respondent Aboitiz filed a notice of dismissal of its complaint in accordance with Section 1. 1983 of respondent Judge Ramon Am. R-21761 be returned to the petitioner. That. On September 9. . but properties in the custody of the private respondent by virtue of the writ of replevin issued in Civil Case No. in view of the enormous liabilities which the defendants have with the plaintiff. Subsequently. issued on May 14. however. conceal and dispose of their properties. The Decision in G. He also averred that the property seized were in custodia legis by virtue of the writ of attachment issued by Branch 11. It asserted that because the writ of preliminary attachment was different from the writ of replevin. 1983 totaled P13. p. praying for the stay of the July 6. Paragraph 16 of the complaint states: 16. Adlawan was a resident of Minglanilla.R. on July 13. obviously to defraud the plaintiff. . I In a complaint dated April 24. we should rule that the property subject of the latter writ should remain in custodia legis of the court issuing the said writ. Undaunted. the case was raffled to Branch 11 of the Court of First Instance of Cebu.00 loan with said bank and was able to remove. CEB-1186.000. No. CEB-1185 alleged that petitioner Eleazar Adlawan (defendant therein) was awarded a contract for the construction of the Tago Diversion Works for the Tago River Irrigation Project by the National Irrigation Administration and that respondent Aboitiz (plaintiff therein) loaned him money and equipment. now Regional Trial Court. remained in force as the Third Division of the Supreme Court had not found it illegal. this Court rules that the properties in the custody of the private respondent Aboitiz & Company by virtue of the writ of attachment issued in Civil Case No. respondent Aboitiz and Company. entry of judgment was made on November 15. (2) technical and managerial services rendered. which issued a writ of attachment addressed to the Provincial Sheriffs of Cebu and the City Sheriff of Davao City. 1990. The complaint in Civil Case No. 1982 the lifting of the writ and. CEB-1185 and CEB-1186. The motion was favorably acted upon. 1990. In the Resolution dated September 10. Thus. Consequently. and the dismissal of the complaint. However. emphasizing that all orders of the court issued prior to the filing of said notice of dismissal had been rendered functus oficio. Inc. His omnibus motion was denied. 1982 Order for a period of 15 days for it to be able to appeal the order. Petitioners moved for a bill of particulars and to set aside the ex parte writ of attachment. The motion was. Subsequently. . Acting on the ex parte application for attachment.

Macadaeg. 109113). CEB-1185.. which was raffled to Branch 23. p. On December 15. constituted undue interference with the processes of this court in the then pending petition involving the same property. No writ of preliminary attachment was.259. their creditor.000. Petitioners contended that in Civil Case No.. 1983. No. 1983 addressed to the Sheriffs of Cebu. we issued a temporary restraining order on January 6. in Civil Case No. CEB-1186. as it was necessary for them to continue their business operations even after respondent Aboitiz had stopped giving them financial aid.000. As held in Carpio v.) S. concealment and disposition of defendant's property. 1983 Order be set for hearing.. married and a resident of Cebu City. They alleged that respondent Judge gravely abused his discretion in ordering the issuance of the writs of preliminary attachment inasmuch as the real estate mortgage executed by them in favor of PCIB did not constitute fraudulent removal..000. 118). That this action is one of those specifically mentioned in Section 1. the filing of the two cases. an order directing the transfer to Branch 6 of Civil Case No. Petitioners then filed in Civil Cases Nos. because on May 27.. issued in Civil Case No. presided by respondent Judge Ramon Am.R. notwithstanding that his attention had been called with regard to the pendency of G. ROMAN S. .500. I. which had an exposure amounting to P13. CEB-1186.. whereby a writ preliminary attachment may lawfully issue because the action therein is one against parties who have removed or disposed of their properties with intent to defraud their creditor.430. respondent Judge ordered the issuance of a writ of attachment upon respondent Aboitiz' filing of a bond of P5.000. they argued that respondent Judge gravely abused his discretion in proceeding with the case. R-21761 under Section 1.00 loan with the same bank.000. On September 14. Jacinto ordered the issuance of a writ of attachment upon the filing of a bond of P2. pp. 63225 in this Court. The affidavit submitted by respondent Aboitiz states: REPUBLIC OF THE PHILIPPINES CITY OF CEBU .430. 1982 they executed a real estate mortgage in favor of Philippine Commercial and Industrial Bank (PCIB) covering eleven (11) of their fifteen (15) parcels of land in Cebu to secure a P1. The affidavit submitted by respondent Aboitiz in support of its prayer for the writ of attachment does not meet the requirements of Rule 57 of the Revised Rules of Court regarding the allegations on impending fraudulent removal. respondent Aboitiz alleged that the voluntary dismissal of Civil Case No. Similarly. respondent Judge issued an order holding in abeyance the enforcement of the writs of preliminary attachment in order to afford petitioners an opportunity to seek their other remedies (Rollo. Branch 11 had ruled that the loan for which the mortgage was executed was contracted in good faith. 1983 and issued in Civil Cases Nos. petitioners filed an ex parte motion praying: (1) that the December 12. Torres. Moreover. That the defendants have removed or disposed of their properties with intent to defraud the plaintiff. Branch 23 issued on October 13.00. On the same day. Thus. plaintiff herein. the Acting Provincial Sheriff of Cebu issued separate writs dated September 26. 1983.259. No. presiding Judge Emilio A. the factual basis on defendant's intent to defraud must be clearly alleged in the affidavit in support of the prayer for the writ of attachment if not so specifically alleged in the verified complaint. Accordingly. p.000. 1983. 1984 "enjoining the respondents from enforcing or implementing the writs of preliminary attachment against the property of petitioners. to justify a preliminary attachment. 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. Upon motion of respondent Aboitiz.R. CEB-1185. 63225. hereby depose and say: That I am the Vice-President of the plaintiff corporation in the above-entitled case. Rule 17 of the Revised Rules of Court was without prejudice to the institution of another action based on the same subject matter. it was not per se a ground for attachment lacking proof of intent to defraud the creditors of the defendant. and (3) that within the same 15-day period the implementation or enforcement of the writs of attachment be held in abeyance. It averred that the issuance of the writ of attachment was justified because petitioners were intending to defraud respondent Aboitiz by mortgaging 11 parcels of land to the Philippine Commercial and Industrial Bank (PCIB) in consideration of the loan of P1. RONQUILLO. as well as the issuance of the writs of attachment. in Civil Case No. Meanwhile. Davao and Metro Manila "to proceed with the enforcement and implementation of the writs of preliminary attachment. contending that since the property subject of the writ of attachment have earlier been attached or replevied. CEB-1185 and CEB-1186 urgent motions to hold in abeyance the enforcement of the writs of attachments. the removal or disposal must have been made with intent to defraud defendant's creditors. Branch 6.00. however. thereby making PCIB a preferred creditor to the prejudice of respondent Aboitiz.S. On December 27.14. They alleged in the main that since their property had been previously attached and said attachment was being questioned before the Supreme Court in G. CEB 1185 and 1186" (Rollo. 1983. all dated September 26. II The resolution of this case centers on the issue of the legality of the writ of attachment issued by respondent Judge in the consolidated cases for collection of sums of money.. Petitioners also contended that respondent Judge exceeded his jurisdiction when he issued the Order of December 12.. As prayed for by petitioners.14 exclusive of interests thereon and damages claimed. Petitioners then filed a rejoinder to said comment. Rule 57 of the Rules of Court. without first hearing the parties on the motion for attachment and the motion to dissolve the attachment.00. On December 12. Davao and Metro Manila. of legal age. 116). petitioners filed the instant petition for certiorari and mandamus.. CEB-1186 for consolidation with Civil Case No. Proof of fraud is mandated by paragraphs (d) and (e) of Section 1. They argued that granting the mortgage constituted removal or disposition of property.. CEB-1185 was raffled to the Regional Trial Court.. the same property were under custodia legis and therefore could not be the subject of other writs of attachment...100. respondent Judge issued an order finding no merit in petitioners' motion for reconsideration and directing the sheriffs of Cebu. 21761." Respondent Judge ruled that the writs of attachment were issued on the basis of the supporting affidavits alleging that petitioner had removed or disposed of their property with intent to defraud respondent Aboitiz (Rollo.. 9 SCRA 552 (1963). (2) that they be given 15 days within which to either file a motion for reconsideration or elevate the matter to this Court or the then Intermediate Appellate Court. concealment or disposition of property. after being sworn in accordance with law. Rule 57 of the Revised Rules of Court on the grounds upon which attachment may issue.Civil Case No. in its comment on petitioners' motion to withhold the enforcement of the writs of attachment.

that there is no factual allegation which may constitute as a valid basis for the contention that the mortgage was in fraud of respondent Aboitiz. Inc. Respondent Judge or whoever is the presiding judge of the Regional Trial Court. We find. Inc. the petition is GRANTED and the Temporary Restraining Order issued on January 6. f i SO ORDERED. Court of Appeals. if only to gather facts in support of the allegation of fraud (Jopillo. That the total amount due to the plaintiff in the above-entitled case is P13. CEB-1185 and f CEB-1186 with deliberate dispatch. excluding interests and claim for damages and is as much the sum for which an order of attachment is herein sought to be granted. One overriding consideration is that a writ of attachment is substantially a writ of execution except that it emanates at the beginning. v. however. v. JJ. No. "[T]he general rule is that the affidavit is the foundation of the writ. I hereunto set my hand this 24th day of August 1983 at Cebu City. Consequently..R.That there is no sufficient security for the claims sought to be enforced by the present action." . Furthermore. 167 SCRA 247 [1988]). is DIRECTED to PROCEED with the resolution of Civil Cases Nos. Court of Appeals. as the Court has time and again said. A Branch 6. 171-172) It is evident from said affidavit that the prayer for attachment rests on the mortgage by petitioners of 11 parcels of land in Cebu. Davide. v. attachment is a R harsh. As this Court said in Jardine-Manila Finance.. 205 SCRA 127 [1992]. a debtor merely subjects it to a lien but ownership thereof is not parted with. Cebu City. the inability to pay one's creditors is not necessarily synonymous with fraudulent intent not to honor an obligation (Insular Bank of Asia & America. 171 SCRA 636 (1989). and if none be filed or one be filed which wholly fails to set out some facts required by law to be stated therein. Tay Chun Suy v. Court of Appeals. Jr. L L O WHEREFORE. N S The judge before whom the application is made exercises full discretion in considering the supporting . which encumbrance respondent Aboitiz considered as fraudulent concealment of property to its prejudice. The execution of a mortgage in favor of another creditor is not conceived by the Rules as one of the means of fraudulently disposing of one's property. N Q We need not discuss the issue of whether or not Civil Cases Nos. Bare allegation that an encumbrance of a property is in fraud of the creditor does not suffice. IN VIEW WHEREOF. 212 SCRA 713 O [1992]). This is what Section 13 of Rule 57 mandates. 190 SCRA 629 [1990]). (Rollo. Nicolas.14. instead of at the termination R of the suit (Santos v. concur. 1984 is made PERMANENT. Factual bases for such conclusion must be clearly averred. Aquino. Inc. above all legal counter-claims on the part of the defendants. v.430. respondent S Judge should have considered it as a motion for the discharge of the attachment and should have conducted a hearing or required submission of counter-affidavits from g the petitioners. there is no jurisdiction and the proceedings are null and void. when petitioners filed a (motion for the reconsideration of the order directing the issuance of the writ of attachment. a writ of attachment can only be granted on concrete and specific M grounds and not on general averments quoting perfunctorily the words of the Rules (D. Jr.. Lub Oil O Marketing Center. Philippines. . CEB-1185 and CEB-1186 constituted U undue interference with the proceedings in G. a n t Cruz. Bellosillo and Kapunan.P. 63225 in view of the entry of judgment in the latter I case.259. By mortgaging a piece of property. Court of d Appeals. pp. extraordinary and summary remedy and the rules governing its issuance must be construed A strictly against the applicant. evidence proffered by the applicant. 191 SCRA 423 [1990]). ) This procedure should be followed because. Jr. Verily.

Upon petition of respondent Abaya (Annex L). that a sufficient cause of action exists. 42450. 1960. should have provided petitioner with the chance to show that he had not been disposing of his property in fraud of creditors. 1960 (Annex K. pursuant to which the Sheriff of Manila garnished goods consisting of hardware imported by petitioner. MAKALINTAL. So. by itself. respondent Judge issued two orders of attachment dated February 8 (Annex C-1) and February 10. WHEREFORE. and that the amount due to the plaintiff. respondent Judge. respondent Judge. before issuing the preliminary attachment anew. ISABELO CARPIO. must have been made with intent to defraud defendant's creditors. reiterated the defenses against preliminary attachment which he had previously enumerated in his petition to discharge the two orders of attachment. Upon motion of respondent Abaya (Annex T). Rules of Court. he set aside his order of March 11. Manila). we believe it is no longer necessary to discuss the subsequent actuations of respondent Judge which were all based on the erroneous assumption that his order of March 29. O.Republic of the Philippines SUPREME COURT Manila EN BANC G. 1963 Petitioner seeks annulment of the order of October 24.000 and the horses were released to him by respondent Sheriff of Rizal. the sale was halted by petitioner's putting up a bond of P4. is not ground for issuance of preliminary attachment. S. upon which the order of attachment (Annex K) was based. in his opposition to Abaya's motions for reconsideration (Annex J). Upon motion of respondent Abaya (Annex R). Thus the question of fraudulent disposal was put in issue. J. 1960 (Annex K). No. Before summons was served. respondent Judge. or of some other person who personally knows the facts. on March 11. as examples of which disposals he pointed to the alleged sale of the horses and of petitioner's office furniture (Abaya's motion for reconsideration dated March 15. Upon two motions of respondent Abaya (Annexes H and 1). dated March 29. 1960.4 This he did apparently on Abaya's contention that petitioner was about to remove or dispose of his property in order to defraud his creditors. vs. that the case is one of those mentioned in section 1 hereof. and the bond required by the next succeeding section. C. Nashua and Sirius.000 (Annex S). 1960. 1960. W. OSCAR C. However. Annex F). 1960 ordering him to file an additional bond of P6. 1960 petitioner filed an urgent petition to discharge the orders of attachment (Annex 1).F. on October 24. 1960. 1960 denying his motion for reconsideration of the order of October 24.R. Motions filed by petitioner seeking reconsideration of the said order of October 24 were denied by respondent Judge on November 25. Manalo for respondents. 1960. ABAYA. Fajardo and J. 1960 (Annex F). and respondent Judge. the order of March 29. to justify preliminary attachment. Respondent Judge should not have issued the two writs of preliminary attachment (Annexes C and C-1) on Abaya's simple allegation that the petitioner was about to dispose of his property. On January 17.C. respondent Sheriff of Rizal advertised the sale at public auction of the five racing horses. None appears attached either to his motion for reconsideration dated March 15. which states that: SEC. For the purposes of issuance of preliminary attachment. respondents. Mohamad's Pride. respondent Judge should not have again ordered the issuance of the writ of preliminary attachment since Abaya never made any affidavit as required by Rule 59. are hereby declared null and void. and upon ex partemotion of respondent Abaya (Annex B). Court of First Instance of Manila.2 Respondent Judge in fact corrected himself.000. petitioner. and the preliminary injunction issued by this Court is made permanent. respondent Judge issued an order directing the sale at public auction of the five racing horses (Annex M). Baria and F. Acting on petitioner's motion to discharge attachment and apparently believing the correctness of the grounds alleged therein. on the ground that in issuing them respondent Judge acted without jurisdiction and/or with grave abuse of discretion. Annex H). ordered the increase of the bond to P10. at the very least. Magic Spell.3 he set aside the orders of attachment (Order of March 11. the attached properties are ordered released. is not sufficient. with instructions to respondent Sheriff of Rizal to allow the daily training of the said horses and their participation in races whenever they were included in the racing programs. These averments of fraudulent disposals were controverted by petitioner who. Cortez for petitioner. 1960 (Annex I). the affidavit (Annex B-1) attached to Abaya's motion therefor (Annex B).: Isabelo Carpio filed this petition for certiorari and prohibition to annul and stop implementation of respondent Judge's orders of October 24 and November 25. But reversing himself again. notwithstanding absence of any security for the satisfaction of any judgment against the defendant. P. and ordered respondent Sheriff of Rizal to proceed with the sale of the horses should petitioner failed to file the additional bond of P6. 1960 respondent Oscar Abaya filed a complaint against petitioner for the recovery of various sums aggregating P25. and the Sheriff of Rizal seized petitioner's five racing horses named Mohamad.000. and it does not appear that he ever executed another affidavit that complies with the above section. as presiding Judge of Branch X. which affidavit. thereby leaving no security for the satisfaction of any judgment. Having construed that the preliminary attachment should not have been ordered. L-17797 November 29. 1960 (Annex H) or to his motion for reconsideration dated March 16. and the order of the same date authorizing the sale of the garnished goods. that there is no other sufficient security for the claim sought to be enforced by the action. We issued a writ of preliminary injunction to restrain the sale. or the value of the property which he is entitled to recover the possession of. HIGINIO MACADAEG. respondent Sheriff of Manila garnished the aforementioned goods and respondent Sheriff of Rizal attached the five racing horses. on the same day ³ November 25 issued an order authorizing the sale of the garnished goods (Annex Z). respondent Judge. set aside his order of March 11. as we have said. Provincial Sheriff of Rizal and City Sheriff of Manila. Acting thereon. 1960 (Annex C). on March 29. 3. must be duly filed with the clerk or judge of the court before the order issues.I.5 But for much more than the above reason. 1960. 1960 (Annex X). . Costs against respondent Abaya. and despite the opposition of petitioner(Annex U).1 Mere removal or disposal of property. 1960 and all succeeding orders of respondent Judge with respect to said preliminary attachment. directing the sale of five race horses and goods previously attached upon motion of respondent Oscar Abaya. Though no new petition was filed for issuance of a writ of attachment and no new order or alias writ of attachment was issued. set aside the two orders of February 8 and 10. Order issued only when affidavit and bond filed ³ An order of attachment shall be granted when it is made to appear by the affidavit of the plaintiff. should have given the parties opportunity to prove their respective claims or.000 (Civil Case No. On February 12. HON. 1960 was valid (Annex K). The removal or disposal. the order of November 25. is as much as the sum for which the order is granted above all legal counterclaims.

Feb. 1952. Bautista Angelo. L-4296. 1960 (Annex B) and the affidavit attached thereto (Annex B-1). C. 25. Rules of Court. 1 (e). Nov. Paredes. L-6214. Dizon and Regala.Bengzon. Manila. Barrera. Footnotes 1 See Abaya's motion for issuance of writ of preliminary attachment dated February 6. Pecson. Annexes 1 and A to petitioner's memorandum. Villongco v.. 41984. Civil Case No. JJ. Panlilio. 20. that while this order set aside the order of March 11. 1953. 3 Petitioner claimed therein that the two orders of attachment were irregular and improper because (1) in his affidavit. 1960 (which set aside both orders of attachment).) 4 Note. Abaya failed to aver that the removal or disposal of property had been in fraud of creditors. concur. 5 National Coconut Corporation v. Rule 59.J.F. C. (Petition to discharge orders of attachment and affidavit.. however. it ordered only the provincial sheriff of Rizal "to proceed with the attachment of the horses. 2 Sec." without directing the sheriff of Manila to garnish the goods again. Padilla. Concepcion. .I. (2) that petitioner could not have removed or disposed of his properties since they have already been all attached by Abaya in another action between them. and (3) that Abaya had no valid cause of action against him because the promissory notes upon which he based his action had been liquidated and paid.

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