NICANOR NACAR, petitioner, vs. CLAUDIO A. NISTAL as
Municipal Judge of Esperanza, Agusan del Sur; PROVINCIAL SHERIFF of Agusan del Sur, ILDEFONSO JAPITANA and ANTONIO DOLORICON, respondents.
Tranquilino O. Calo, Jr. for petitioner.
Ildefonso Japitana and Antonio Doloricon for respondents.
SYNOPSIS
To recover a sum of money, respondent Japitana filed a complaint
entitled, "Claim against the Estate of the Late Isabelo Nacar with Preliminary Attachment" against the petitioner before the Municipal Court of Esperanza, Agusan del Sur. On the basis of the said complaint, the provincial sheriff was ordered to attach seven (7) heads of cattle in possession of the petitioner, although actually only four (4) carabaos were attached. Claiming ownership of the attached carabaos, Antonio Doloricon filed a complaint in intervention. Petitioner's motion to dismiss, to dissolve writ of attachment and to order the return of the seized carabaos, was, upon opposition of the private respondent, denied by the respondent court. Hence, the instant recourse. Upon posting a P1,000.00 bond, a preliminary mandatory injunction was issued by the Supreme Court. The Supreme Court held that since respondent Japitana has no cause of action against the petitioner because the debts were actually incurred by the late Isabelo Nacar, the respondent Court's denial of the motion to dismiss the complaint and its issuance of a writ of attachment based thereon, are improper. Petition granted. Preliminary mandatory injunction made permanent.
SYLLABUS
1. REMEDIAL LAW; ACTIONS; MOTION TO DISMISS; LACK OF CAUSE