1.

Under the rules, an action to recover the possession of property unjustly or fraudulently taken, detained or
converted, when the property, or any part threof, has been concealedd, removed or disposed of to prevent its
being foundor taken by the applicant or an authorized person” (Sec1(C), Rule 57, Rules of Court)

Here, the main action is on for the recovery of the possession of property. The justification for the issuance of the
writ under the provision, Is the defendant’s act of taking the property unjustly or fraudulently. It may also result
from his act of detaining or converting said property. Aside from any of the acts mentioned, there must also be a
showing that the defendant concealed, removed or disposed of the property, or any part thereof to prevent its
being found or taken by either the applicant or an authorized person.
Q: Katy filed an action against Tyrone for collection of the sum of P1 million in the RTC, with an ex-parte application for a
writ of preliminary attachment. Upon posting of an attachment bond, the court granted the application and issued a writ of
preliminary attachment. Apprehensive that Tyrone might withdraw his savings deposit with the bank, the sheriff
immediately served a notice of garnishment on the bank to implement the writ of preliminary attachment. The following
day, the sheriff proceeded to Tyrone’s house and served him the summons, with copies of the complaint containing the
application for writ of attachment, Katy’s affidavit, order of attachment, writ of preliminary attachment and attachment
bond. Within fifteen (15) days from service of the summons, Tyrone filed a motion to dismiss and to dissolve the writ of
preliminary attachment on the following grounds: (i) the court did not acquire jurisdiction over his person because the writ
was served ahead of the summons; (ii) the writ was improperly implemented; and (iii) said writ was improvidently issued
because the obligation in question was already fully paid. Resolve the motion with reasons. (2005 Bar)

A: The motion to dismiss and to dissolve the writ of preliminary attachment should be denied.

1. The fact that the writ of attachment was served ahead of the summons did not affect the jurisdiction of the court over his
person. It makes the writ, unenforceable (Sec. 5, Rule 57). Section 5. Manner of attaching property. — The sheriff enforcing the
writ shall without delay and with all reasonable diligence attach, to await judgment and execution in the action, only so much of the
property in the Philippines of the party against whom the writ is issued, not exempt from execution, as may be sufficient to satisfy
the applicant's demand, unless the former makes a deposit with the court from which the writ is issued, or gives a counter-bond
executed to the applicant, in an amount equal to the bond fixed by the court in the order of attachment or to the value of the property
to be attached, exclusive of costs. No levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced unless
it is preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint, the application
for attachment the applicant's affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines.

However, all that is needed to be done is to re-serve the writ (Onate v. Abrogar, G.R. No. 197393, February 23, 1985).

2. The writ was improperly implemented. Serving a notice of garnishment, particularly before the summons is
served, is not proper. It should be a copy of the writ of attachment that should be served on the defendant, and a
notice that the bank deposits are attached pursuant to the writ (Sec. 7[d], Rule 57).
 3. Section 7. Attachment of real and personal property; recording thereof. — Real and personal property shall be attached
by the sheriff executing the writ in the following manner:

(b) Personal property capable of manual delivery, by taking and safely keeping it in his custody, after issuing thecorresponding
receipt therefor.

3. The writ was improvidently issued if indeed it can be shown that the obligation was already fully paid. The writ is only
ancillary to the main action (Sec. 13, Rule 57). Section 13. Discharge of attachment on other grounds. — The party whose
property has been ordered attached may file a motion with the court in which he action is pending, before or after levy or even after
the release of the attached property, for an order to set aside or discharge the attachment on the ground that the same was
improperly or irregularly issued or enforced, or that the bond is insufficient. If the attachment is excessive, the discharge shall be
limited to the excess. If the motion be made on affidavits on the part of the movant but not otherwise, the attaching party may
oppose the motion by counter-affidavits or other evidence in addition to that on which the attachment was made. After due notice
and hearing, the court shall order the setting aside or the corresponding discharge of the attachment if it appears that it was
improperly or irregularly issued or enforced, or that the bond is insufficient, or that the attachment is excessive, and the defect is not
cured forthwith. 

The alleged payment of the account cannot serve as a ground for resolving the improvident issuance of the writ, because
this matter delves into the merits of the case, and requires full-blown trial. Payment, however, serves as a ground for a
motion to dismiss.