Davao Light & Power Co. Inc., v.

CA, Queensland Hotel and Adarna (ex parte issuance of

a writ of preliminary attachment)
FACTS:

 Herein petitioner filed a verified complaint for recovery of a sum of money and damages
against Queensland Hotel and Adarna (in a civil case). It contained an ex parte
application for a writ of preliminary attachment.
 Judge Nartatez granted the application and fixed the attachment at 4,600,513.37.
 An attachment bond having been submitted by Davao Light.
 Thereafter, summons were issued to the defendants, pursuant to the writ, the sheriff
seized the properties belonging to the latter.
 Defendants filed a motion to discharge the attachment for lack of JD to issue the same
because at the time the order of attachment was promulgated May 3, 1989, and the
attachment writ issued May 11, 1989, the RTC had not yet acquired JD over the cause
and over their person. However, it was denied.
 The defendants successfully challenged such Order by way of certiorari in the CA.
 The CA ratiocinated that: while it is true that PA may be included in the complaint, it is
likewise true that the Court does not acquire JD over the person of the defendant until he
is duly summoned or voluntarily appears and that ex parte issue does not confer said JD
before actual summons had been made nor retroact JD upon summons being made.
ISSUE: Whether or not a Writ of Preliminary Attachment may issue ex parte against a
defendant before acquisition of the latter’s person by service of summons or his voluntary
submission to the Court’s authority
HELD: Yes. The SC pointed out that it is erroneous to say that the validity of acts done is made
to depend or held in suspension until, the actual obtention of the JD over the defendant’s
person. That this is true with respect to provisional remedies like preliminary attachment, it may
be validly applied for and granted even before the defendant is summoned or is heard from.
As defined under Rule 57, a preliminary attachment may be applied for by the plaintiff or proper
party at the commencement of the action or at any time thereafter. This phrase refers to the
date of filing of the complaint and to a time before summons is served on the defendant or even
before summons. The Court further ruled that a hearing on a motion or action for PA is not
generally necessary unless otherwise directed by the RTC in its discretion and if such were the
case, it will defeat the objective of the remedy. More so, there is nothing in the Rules of Court
makes notice and hearing indispensable and mandatory requisites for the issuance of a writ of
attachment.
The only pre-requisite is that the Court be satisfied that upon consideration of:

 the “affidavit of the applicant or of some other person who personally knows the fact,
that a sufficient cause of action exists;
 that the cause is one of those mentioned in Rule 57 Sec 1;
 that there is no other sufficient security for the claim sought to be enforced by the action;
and
 that the amount due to the applicant, is as much as the sum for which the order of
attachment is granted above all legal counterclaims.
  And the writ shall issue upon the applicant’s posting of a bond executed to the adverse
party in an amount to be fixed by the Judge, not exceeding the plaintiff’s claim,
conditioned that the latter will pay all the costs which may be adjudged to the adverse
party and all damages which he may sustain by reason of the attachment, if the
applicant was not entitled thereto.
The SC said that whatever acts done by the Court prior to the acquisition of JD over the person
of the defendant (issuance of summons, order of attachment, etc), however valid and proper
they might appear, cannot and do not affect the defendant unless and until JD over his person is
obtained by the court. The service of such documents is indispensable not only to acquire JD
over his person but in consideration of fairness, to apprise the defendant of the complaint
against him, of the issuance of a writ of PA, and the grounds therefor and thus accord him the
opportunity to prevent the attachment by posting of a counterbond.
The Court reiterates that a writ of PA may properly issue ex parte provided the court is satisfied
with the requirements, but the levy on property pursuant to the writ thus issued may not be
validly effected unless preceded or contemporaneously accompanied by a service on the
defendant of summons, a copy of the complaint, the application for attachment (if not
incorporated in but submitted separately from the complaint), the order of attachment, and the
plaintiff’s attachment bond.

Side note: There are two ways of discharging a PA. First, by the posting of a counterbond;
Second, by a showing of its improper or irregular issuance.
But even before actual levy on property, seizure under attachment may be prevented also upon
counterbond. The defendant need not wait until the property is seized before seeking discharge
of the attachment. This is made possible under Sec 5 Rule 57.
Secondly, Sec 13 of Rule 57—irregular or improper issue. Like the first, this second mode of
lifting the attachment may be resorted to even before the property has been levied on.
In Calderon v. IAC, it held that a debtor cannot be deemed to have waived any defect in the
issuance of the attachment by simply availing of himself of one way of discharging the
attachment, instead of the other. The filing of a counterbond is a SPEEDIER way of discharging
instead of the other way.
Mindanao Savings & Loans Assoc Inc v CA
(a) When an attachment may not be dissolved by a showing of its irregular or
improper issuance:
- When the PA is issued upon a ground which is at the same time the applicant’s
cause of action (katong fraud in contracting the debt, embezzled property/money)
- The reason being that the hearing on such a motion for dissolution would be
tantamount to a trial of the merits of the action. Thus, it can only be dissolved by a
counterbond.
(b) Effect of dissolution of a PA on the plaintiff’s attachment bond:
- It does not operate to discharge the sureties on plaintiff’s own attachment bond.
- The reason is that the bond executed to the adverse party conditioned that the
applicant will pay all the costs which may be adjudged to the adverse party and all
damages which he may sustain by reason of the attachment.