NAME: PEPITO, IREN G.

CASE TITLE: TOLEDO V. BURGOS

TOPIC: PRELIMINARY ATTACHMENT – ISSUANCE AND CONTENTS OF ORDER

(Rule 57, Section 2)

Principle:

There is no need for a judge to set a hearing on the application for a writ of preliminary
attachment may be made by the court ex parte. Moreover, the judge before the application is
made has full discretion in considering the supporting evidence proffered by the applicant.

Facts:

A Complaint for delivery of personal property was filed by X against Y but was
subsequently denied. X subsequently applied for a writ of attachment alleging that Y has
removed and has disposed or is about to dispose of her property with intent to defraud X. The
writ was denied without prior notice and hearing.

Issue:

Whether or not the denial was proper.

Answer/ Ruling:

YES.

Pertinently, Rule 57, Section 2 of the Rules of Civil Procedure provides:

Section 2. Issuance and contents of order. — An order of attachment may be issued either ex
parte or upon motion with notice and hearing by the court in which the action is pending, or by
the Court of Appeals or the Supreme Court.

In the case at bar, the respondent judge acted correctly in denying the application for
issuance of a writ of preliminary attachment. There was no need for him to set a hearing
on the said application. This is because the issuance of a writ of preliminary attachment
may be made by the court ex parte.