Prov Rem 1

PROVISIONAL REMEDIES
COMMON RULES IN
1. CALO vs. ROLDAN
Facts:
This is a petition for writ of certiorari against Judge Arsenio
Roldan on the ground of exceeding his jurisdiction and
acted with grave abuse of discretion in appointing a
receiver of certain lands and their fruits.
Regino Relova and Teodula Bartolome filed a complaint
against Tranquilino Calo and Doroteo San Jose for
conniving with each other, and through the use of force,
stealth, threats, and intimidation, intend to enter and work
or harvest existing fruits may be found in the lands
allegedly owned and possessed by the plaintiffs.
The plaintiffs prayed for the issuance of the preliminary
injunction (WOPI) to be issued ex parte to immediately
restrain, enjoin, and prohibit the defendants and their
agents from entering and interfering with the harvest of the
lands belonging to the plaintiffs.
The defendants opposed the WOPI on the ground that they
are owners of the lands and have been in actual possession
thereof since 1925.
The CFI Judge denied the petition for the WOPI on the
ground that the defendants were in actual possession of
said lands.
MR was filed but was not decided by the CFI.
Plaintiffs then filed an urgent petition ex-parte praying that
the MR of the order denying their petition for WOPI be
granted and/or for the appointment of the receiver of the
properties on the ground that:
a.
b.
Plaintiffs have interest in properties in question

and the fruits were in danger of being lost unless
a receiver is appointed
The appointment of a receiver was the most
convenient and feasible means of preserving,
administering, and or disposing of the properties
in litigation which included their fruits
Judge Roldan decided to consider the MR and granted the

appointment of a receiver.
Issue: WON it is proper for the plaintiffs to apply and be
granted of the preliminary attachment.
possession thereof and that the defendants with any legal

right and through the use of force, stealth, threat, and
intimidation, intend to enter the lands in violation of the
plaintiffs proprietary rights.
In the present case, the plaintiffs alleged that they are the
owners and were in actual possession of the lands
described in the complaint and their fruits, the action of
injunction filed by them is the proper and adequate remedy
in law, for a judgment in favor of plaintiffs would quiet
their title to said lands.
The
provisional
remedies
(PRs)
denominated
attachment, preliminary injunction, receivership, and
delivery of personal property, provided in Rules 59, 60,
61, and 62 of the ROC, are remedies to which parties
litigant may resort for the preservation or protection of
their rights or interest, and for no other purpose,
during the pendency of the principal action.
If by the nature of such action does not require such
protection or preservation, said remedies cannot be
applied for and granted. To each kind of action, a
proper provisional remedy is provided by law. The
Rules of Court clearly specify the case in which they
may be properly granted.
Attachment may be issued only in the case or actions
specifically stated in section 1, Rule 59, in order that the
defendant may not dispose of his property attached, and
thus secure the satisfaction of any judgment that may be
recovered by plaintiff from defendant. For that reason a
property subject of litigation between the parties, or
claimed by plaintiff as his, cannot be attached upon motion
of the same plaintiff.
The special remedy of preliminary prohibitory injunction
(PPI) lies when the plaintiffs principal action is an ordinary
action of injunction, that is when the relief demanded in
the complaint consists in restraining the commission or
continuance of the act complained of, either perpetually or
for a limited period, or other conditions required by Section
3 of Rule 60 are present.
The purpose of this PR is to preserve the status quo of the
things subject of the action or the relation between the
parties, in order to protect the rights of the plaintiff
respecting the subject of the action during the pendency of
the suit.
If no PPI were issued, the defendant may, before final
judgment, do or continue the doing of the act which the
plaintiff asks the court to restrain, thus make ineffectual
the final judgment granting the relief sought by the
plaintiff.
Held:
According to the complaint filed by the plaintiffs, their
action is one of ordinary injunction, for they alleged that
they are the owners of the lands, and were in actual
But, a WOPI should not be granted to take the property out

of the possession of one party to place it in the hands of
another whose title has not been clearly established.
AGUSTIN, E.P.
A receiver may be appointed to take charge of personal or

real property which is the subject of an ordinary civil
action, when it appears that the party applying for the
appointment of a receiver has an interest in the property or
fund which is subject of the action or litigation.
According to law, the PR proper to plaintiffs action of
injunction is a PPI, if plaintiffs theory as set forth in the
complaint, that he is the owner and in actual possession of
the premises is correct. But as the lower court found at the
hearing of the petition for preliminary injunction that the
defendants were in possession of the lands, the lower court
acted in accordance with law in denying the petition.
From the foregoing it appears evident that the respondent
judge acted in excess of his jurisdiction in appointing a
receiver.
Appointment of a receiver is not proper or does not lie in an
action of injunction such as the one filed by the plaintiff.
The petition for appointment of a receiver filed by the
plaintiffs is based on the ground that it is the most
convenient and feasible means of preserving, administering
and disposing of the properties in litigation; and according
to plaintiffs' theory or allegations in their complaint,
neither the lands nor the palay harvested therein, are in
litigation.
The litigation or issue raised by plaintiffs in their complaint
is not the ownership or possession of the lands and their
fruits. It is whether or not defendants intend or were
intending to enter or work or harvest whatever existing
fruits could then be found in the lands described in the
complaint, alleged to be the exclusive property and in the
actual possession of the plaintiffs.
It is a matter not only of law but of plain common sense
that a plaintiff will not and legally cannot ask for the
appointment or receiver of property which he alleges to
belong to him and to be actually in his possession.
AGUSTIN, E.P.
RULE 57
PRELIMINARY ATTACHMENT
Definition
1. ADLAWAN vs. TOMOL

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-63225
April 3, 1990
ELEAZAR V. ADLAWAN, petitioner,

vs.
HON. JUDGE VALERIANO P. TOMOL, as Presiding Judge
of Branch XI of RTC-Cebu (formerly Branch XI, CFICebu), Branch XXVII of RTC-Cebu, with Station in
Lapu-Lapu City (formerly Branch XVI, CFI-Cebu,
Presided over by former Judge Ceferino E. Dulay), and
ABOITIZ COMPANY, INC., respondents.
Pablo P. Garcia for petitioner.
Angara, Concepcion, Regala & Cruz for private respondent.
FERNAN, C.J.:
This is a special civil action for certiorari and mandamus
seeking to annul : [a] the Order dated December 20, 1982
of respondent Judge Valeriano P. Tomol, Branch XI of CFICebu, now Branch XI, RTC-Cebu, in Civil Case No. R21761, entitled "Aboitiz and Company, Inc. v. Adlawan, et
al" denying the motion of the defendant to require the
Provincial Sheriff of Cebu to deliver to him the properties
seized by the Sheriff of Davao City and [b] the Order dated
September 4, 1982 of Judge Ceferino F. Dulay, Branch XVI
of the Court of First Instance of Cebu, now Branch XXVII,
RTC-Cebu, Lapu-Lapu City, in Civil Case No. 619-L
between the same parties, denying for lack of merit
petitioner's Omnibus Motion to reconsider, dissolve and set
aside the Writ of seizure and Replevin.
a sum of money and damages including an ex-parte

application for the issuance of a writ of preliminary
attachment against the property of petitioner as defendant
therein. The Executive Judge without notice and hearing
issued an order 2 on May 14, 1982 directing the issuance
of a writ of preliminary attachment against all the
properties of petitioner, real and personal, upon the filing
of an attachment bond for Four Million Pesos. The case,
docketed as Civil Case No. R21761 was raffled and later
assigned to Branch XI of the Court of First Instance of
Cebu, presided by respondent Judge Valeriano P. Tomol.
On May 26, 1982, writs of preliminary attachment were
issued addressed to the Sheriffs of Cebu, Davao City,
Quezon City, Davao del Sur and Davao del Norte, directing
them to attach the real and personal properties of
petitioner within their respective jurisdictions. On the
strength of the writ of preliminary attachment, the bulk of
petitioner's property in Davao City was attached.
Subsequently, private respondent filed an Urgent Ex-parte
Motions 3 asking the court that it be allowed to take
possession and custody of the attached properties to
protect its interest and to avoid any damage or
deterioration considering that the sheriff has no proper
place to store or deposit said properties. This was granted
by respondent Judge on May 28, 1982 for being
meritorious.
Meanwhile, petitioner before submitting an answer to the
complaint, filed a Motion for a Bill of Particulars 4 and to
Set Aside the Ex-Parte Writ of Preliminary Attachment 5
which was opposed by private respondent. Finding that the
discharge of the writ of attachment is unavoidable on the
ground that it was issued ex-parte, without notice and
hearing, based principally on the alleged removal or
disposition by the defendants of their properties with intent
to defraud the plaintiff, which allegation was limited to a
bare assertion and not persuasively substantial,
respondent Judge issued an Orders 6 dated July 6, 1982,
the dispositive portion of which reads:
Accordingly, the Order of May 14, 1982 granting
the writ of preliminary attachment is lifted and
vacated. The writs issued on 26 May 1982, are
dissolved and recalled and the properties levied
and seized by the Sheriffs of Cebu and Davao City
are discharged and released.
The antecedent facts are as follows:

SO ORDERED. (Emphasis supplied)
Petitioner Eleazar A. Adlawan, a private contractor, was
awarded by the National Irrigation Administration (NIA)
and the Bureau of Public Highways (BPH) contracts for the
construction of various infrastructure projects of the
government to perform his obligations thereunder,
petitioner sought financial assistance and support from
private respondent Aboitiz and Company, Inc. For failure of
petitioner to pay the installments and amortizations,
private respondent filed on May 13, 1982 before the Court
of First Instance of Cebu a complaint 1 for the collection of
In view of the foregoing, private respondent Aboitiz and

Company, Inc. filed an Urgent Ex-Parte Motion 7 dated July
7, 1982 praying for a stay of the July 6, 1982 Order
dissolving the writ of preliminary attachment, thus
maintaining the status quo. Private respondent further
prayed for the court to direct the sheriff of Davao City to
desist and/or stop the enforcement or implementation of
the order lifting the attachment and to grant them fifteen
AGUSTIN, E.P.
(15) days to elevate the matter to the Appellate Court.

Consequently, respondent Judge Tomol issued on the same
day an Orders 8 granting the motion prayed for by private
respondent Aboitiz and Company, Inc. Thus, the July 6,
1982 Order was stayed.
Lapu-Lapu City on July 13, 1982 and the filing of

petitioner Adlawan of a case for damages (Civil Case No.
22265) before the Court of First Instance of Cebu, Branch
X, in connection with the seizure of his properties under
the writ of preliminary attachment.
In the meantime, three (3) Deputy Sheriffs of Cebu

implemented the Order lifting the Writ of Attachment and
were able to pull out some personal properties of petitioner
Adlawan. They were not able to take out all the attached
properties in view of the subsequent Order of respondent
judge to stay its implementation.
With regard to the replevin case filed by private respondent

Aboitiz and Company, Inc., the Court of First Instance of
Cebu, Branch XVI, Lapu-Lapu City, issued an Order 14 for
the seizure and delivery of the properties described therein
to the private respondent. The seized properties were thus
delivered to private respondent by the Clerk of Court and
Ex-officio Provincial Sheriff on July 24, 1982. Petitioner
filed an Omnibus Motion 15 dated July 17, 1982 to
reconsider, dissolve and set aside the Writ of Seizure and
Replevin and to direct that the properties seized be
returned to petitioner as well as to dismiss the complaint.
In support of this motion, petitioner alleged, among others,
that private respondent's office is situated in Cebu City
while petitioner is a resident of mainland Cebu, particularly
Minglanilla therefore the Court of First Instance of Cebu
stationed in Lapu-Lapu should not accept the case.
Furthermore, he alleged that the same personal properties
seized are in custodia legis by virtue of a writ of preliminary
attachment issued by the Court of First Instance of Cebu,
Branch XI, presided by respondent Judge Tomol. The Court
of First Instance of Cebu, Branch XVI in Lapu-Lapu City,
presided by Judge Ceferino E. Dulay denied the Omnibus
Motion for lack of merit on September 4, 1982. Petitioner
Adlawan filed a Motion for Reconsideration but the same
was denied.
As petitioner's Motion for a Bill of Particulars was not

immediately acted upon, he was not able to file an answer
or interpose any counterclaim. For this reason, petitioner
filed an Application for Award of Damages dated July 9,
1982 asking for a reasonable rental on the attached heavy
construction equipment, machineries and other properties
at the rate of P30,000.00 per day from the date of seizure
until said properties are actually returned to his possession
and control.9
Before the court a quo could act on the motions of
petitioner Adlawan, and before he could file an answer, his
motion for a bill of particulars not having been acted upon,
private respondent Aboitiz and Company, Inc., filed on July
13, 1982 a Notice of Dismissal or Withdrawal of Complaint
10 as a matter of right in accordance with Section 1, Rule
17 of the Rules of Court. Respondent Judge Tomol issued
an Order 11 dated July 15, 1982, the dispositive portion of
which reads:
Accordingly, the termination of this case upon the
notice of dismissal voluntarily filed by the plaintiff
is hereby confirmed. For emphasis, all orders of
this Court issued prior to the filing of said notice
of dismissal are each and all rendered functus
officio. By the same token, all pending incidents,
particularly the defendant's motion for a bill of
particulars and their petition for damages against
the Plaintiffs attachment bond, are now beyond
the competence of this Court to consider for being
moot and academic.
SO ORDERED
Petitioner Adlawan filed a Motion 12 dated July 28, 1982
praying for the issuance of an order to the Provincial
Sheriff of Cebu to implement and enforce the Order of
respondent Judge dated July 6, 1982 dissolving the writ of
preliminary attachment and to secure the delivery of the
attached properties to the petitioner. Respondent Judge
issued an Order 13 dated December 20, 1982 denying the
Motion in view of the institution by private respondent
Aboitiz and Company, Inc. of a civil case (No. 619-L) for
delivery of Personal Properties with Replevin and Damages
before the Court of First Instance of Cebu, Branch XVI in
Hence, the present petition for certiorari and mandamus

impleading respondent Judge Valeriano P. Tomol as
Presiding Judge of Branch XI of the Court of First Instance
of Cebu (now Branch XI, RTC-Cebu) and Branch XVI, CFICebu presided by Judge Ceferino E. Dulay in Lapu-Lapu
City (now Branch XXVII of RTC Cebu in Lapu-Lapu) and
private respondent Aboitiz and Company, Inc.
The issues raised by petitioner Adlawan are the following,
to wit:
1) After the attachment of petitioner's properties
was dissolved and discharged because it was
found by respondent Judge to be wrongful and
illegal, does it not constitute grave and manifest
abuse of discretion on the part of the same
respondent judge TO REFUSE to implement his
own order for the return of the attached properties
to petitioner simply because private respondent
suddenly dismissed its complaint?
2) On the other hand, the court, after having
deprived petitioner possession and enjoyment of
his properties, by reason of an attachment which,
subsequently, was dissolved and discharged, was
it not the clear, specific and inescapable duty of
AGUSTIN, E.P.
that same court, to order that said properties be

returned and restored to the possession and
enjoyment of petitioner?
3) Are not the attached properties of petitioner
under the custodia legis of the attaching court
Branch XI, CFI-Cebu (now Branch XI, RTC-Cebu)
and, therefore, subject to its jurisdiction and
control? If so, does it not constitute grave and
manifest abuse of discretion on the part of the
attaching court to literally wash his (sic) hands off
any duty or responsibility by considering himself
(sic) as having been divested of authority to deal
with such properties?
4) Did not the Lapu-Lapu Branch of CFI-Cebu act,
without or in excess of his (sic) jurisdiction or, at
least, with grave abuse of discretion, in taking
cognizance of the replevin case which involves
properties already in custodia legis of Branch XI
of CFI-Cebu?
5) On the other hand, was it not the clear, specific
and inescapable duty of the Lapu-Lapu Branch of
CFI-Cebu, to dismiss the replevin case and
dissolve the writ of replevin, not only because of
the principle of custodia legis but also because it
was in clear violation of Adm. Order No. 6 of this
Honorable Supreme Court, which amends Adm.
Orders No. 147 and 328 of the Department (now
Ministry) of Justice? 16
From the recital of facts may be gleamed a series of
peculiar events and circumstances requiring examination
and looking into in order that justice and equity may be
subserved.
Petitioner's properties were attached on the strength of the
writs of preliminary attachment issued without notice and
hearing by the executive judge. These attached properties
were given to the custody of private respondent, Aboitiz and
Company, Inc. Petitioner then filed a Motion to Dissolve the
Writ of Attachment which was granted by respondent
Judge Tomol. Thus, petitioner was able to recover some of
his properties. But on the following day, this order was
stayed by the same respondent judge leaving the rest of
petitioner's properties with private respondent. Later,
private respondent withdrew its complaint which was
confirmed by respondent Judge Tomol. Petitioner Adlawan
filed a motion to have the rest of his properties returned
but respondent judge refused to act on said motion due to
cases filed by both parties in the different branches of the
Court of First Instance of Cebu relating to the same case.
After a careful examination of the records of the case We
rule in favor of petitioner Adlawan.
There is no question that the order dated July 6, 1982 of

respondent Judge Valeriano P. Tomol, Jr. lifting and
vacating the order granting the writ of preliminary
attachment is a valid order, issued while he had
jurisdiction over the case. The execution of aforesaid order
of July 6, 1982 was stayed for a period of fifteen (15) days
on motion of the plaintiff to enable the latter to question
the propriety or impropriety of the same in the appellate
court. Instead, plaintiff filed a civil case for delivery of
Personal Properties with Replevin and Damages with
another branch of the CFI of Cebu. Accordingly, having
failed to appeal or question the aforementioned order in the
appellate court as originally manifested, the same became
final and executory.
Section 1, Rule 39 of the Revised Rules of Court provides:
Execution upon final judgment or orders.
Execution shall issue upon a judgment or order
that finally disposes of the action or proceeding.
Such execution shall issue as a matter of right
upon the expiration of the period to appeal
therefrom if no appeal has been perfected.
It is basic that once a judgment becomes final, the
prevailing party is entitled as a matter of right to a Writ of
Execution, and the issuance thereof is the Court's
ministerial duty."17
But as earlier stated, the reasons advanced by respondent
Judge Tomol for denying the enforcement of his order dated
July 6, 1982 which lifted the writ of attachment and the
restoration of the seized properties to the defendant
petitioner herein are: [a] the filing by private respondent of
Civil Case No. 619-L with Branch XVI of CFI-Lapu-Lapu
City for delivery of Personal Properties with Replevin and
Damages which as a consequence, the same properties
involved in this case were seized under a writ of replevin
upon order of aforesaid court and [b] the filing by petitioner
of Civil Case No. 22265 before Branch X of the Court of
First Instance of Cebu, for damages.
Hence, the issues in this case center on the nature and
purpose of the writ of attachment.
A writ of preliminary attachment is a provisional remedy
issued upon order of the court where an action is pending
to be levied upon the property or properties of the
defendant therein, the same to be held thereafter by the
Sheriff as security for the satisfaction of whatever judgment
might be secured in said action by the attaching creditor
against the defendant. 18
The provisional remedy of attachment is available in order
that the defendant may not dispose of his property
attached, and thus secure the satisfaction of any judgment
that may be secured by plaintiff from defendant. 19 The
purpose and function of an attachment or garnishment is
AGUSTIN, E.P.
two-fold. First, it seizes upon property of an alleged debtor

in advance of final judgment and holds it subject to
appropriation thus prevents the loss or dissipation of the
property by fraud or otherwise. Second, it subjects to the
payment of a creditor's claim property of the debtor in
those cases where personal service cannot be obtained
upon the debtor. 20 This remedy is to secure a contingent
lien on defendant's property until plaintiff can, by
appropriate proceedings, obtain a judgment and have such
property applied to its satisfaction, or to make some
provision for unsecured debts in cases where the means of
satisfaction thereof are liable to be removed beyond the
jurisdiction, or improperly disposed of or concealed, or
otherwise placed beyond the reach of creditors. 21
Attachment is an ancillary remedy. It is not sought for its
own sake but rather to enable the attaching party to realize
upon relief sought and expected to be granted in the main
or principal pal action. 22
The remedy of attachment is adjunct to the main suit,
therefore, it can have no independent existence apart from
a suit on a claim of the plaintiff against the defendant. In
other words, a attachment or garnishment is generally
ancillary to, and dependent on, a principal proceeding,
either at law or in equity, which has for its purpose a
determination of the justice of creditor's demand. 23
Thus, this Court ruled that upon levy by attachment of the
property in question by order of the Court, said property
fell into custodia legis of that court for purposes of that civil
case only. Any relief against such attachment and the
execution an issuance of a writ of possession that ensued
subsequently could be disposed of only in that case. 24
More specifically, it was held that courts have no
jurisdiction to order the delivery of personal property
(replevin) to the plaintiff if the property is under
attachment. 25 Only courts having supervisory control or
superior jurisdiction in the premises, have the right to
interfere with and change possession of property in
custodia legis. 26
More recently, this Court ruled that the garnishment of
property to satisfy a writ of execution operates as an
attachment and fastens upon the property a lien by which
the property is brought under the jurisdiction of the court
issuing the writ. It is brought into custodia legis under the
sole control of such court. 27
During the life of the attachment, the attached property
continues in the custody of the law, the attaching officer
being entitled to its possession and liability for its safe
keeping. 28
complaint by Aboitiz and Company, Inc. More importantly,

even if the writ of attachment can be considered
independently of the main case, the same, having been
improperly issued as found by respondent Judge Tomol
himself, is null and void and cannot be a justification for
holding petitioners' properties in custodia legis any longer.
To reiterate, an attachment is but an incident to a suit; and
unless the suit can be maintained, the attachment must
fall.
When Aboitiz and Company, Inc. withdrew its complaint,
the attachment ceased to have a leg to stand on. The
attached properties of petitioner Adlawan which are in the
custody of private respondent Aboitiz should be returned to
petitioner. This is only proper and equitable and in
consonance with the rules and principles of law. The
parties, by the withdrawal of the complaint, should be
placed in the same standing as they were before the filing
of the same.
Petitioner also questions the jurisdiction of the CFI of Cebu
stationed in Lapu-Lapu City to hear the replevin case filed
by private respondent in view of the fact that petitioner is a
resident of Minglanilla, Cebu while private respondent's
principal place of business is in Cebu City. Obviously, the
question posed by petitioner is venue.
A reading of the Omnibus Motion filed by petitioner, then
defendant therein, would reveal that he not only questioned
the jurisdiction of the court but likewise alleged nonjurisdictional grounds for dismissing the replevin case,
such as the amount of the bond put up by Aboitiz & Co. as
grossly insufficient and that the same properties are
involved both in the replevin case and in the original
collection case with preliminary attachment. Thus, in so
doing, the court acquired jurisdiction over him. In the case
of Wang Laboratories, Inc. vs. Mendoza 29 this Court held:
Even though the defendant objects to the
jurisdiction of the court, if at the same time he
alleges
any
non-jurisdictional
ground
for
dismissing the action, the court acquires
jurisdiction over him.
Furthermore, in the case of City of Cebu v. Consolacion, 30
We held that:
. . . any of the branches of the Court of First
Instance of the Province of Cebu, whether
stationed in the city of the same name or in any of
the municipalities of the province would be proper
venue for its trial and determination, it being
admitted that the parties are residents of the
Province of Cebu . . .
Based on the above-cited principles, it is obvious that the

writ of preliminary attachment issued is already dissolved
and rendered non-existent in view of the withdrawal of the
AGUSTIN, E.P.
Finally, the employment by counsel for private respondent

of dubious procedural maneuvers as what transpired in the
case at bar obviously to continue the wrongful and illegal
possession and custody of petitioner's properties even after
the dissolution of the attachment is to say the least, hardly
commendable if not a form of "forum shopping", to seek the
court where he may possibly obtain favorable judgment. 31
It may therefore be stated that the right to come before the
Courts to redress a grievance or right a wrong should be
exercised with prudence and good faith. In the case of
Indianapolis v. Chase National Bank, Trustee, 314 U.S. 69,
it is opined that "Litigation is the pursuit of practical ends,
not a game of chess."
WHEREFORE, in view of the foregoing, this Court rules
that the attached properties left in the custody of private
respondent Aboitiz and Company, Inc. be returned to
petitioner Eleazar V. Adlawan without prejudice to the
outcome of the cases filed by both parties.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur.
AGUSTIN, E.P.
Concept and Purpose
1. GUZMAN vs. CATOLICO

SUPREME COURT
Manila
EN BANC
G.R. No. L-45720 December 29, 1937
VENTURA GUZMAN, petitioner,
vs.
ALFREDO CATOLICO and SIMEON RAMOS, Judge of
First Instance of Isabela, respondents.
Arnaldo J. Guzman for the petitioner.
Alfredo Catolico in his own behalf.
No appearance for respondent Judge.
VILLA-REAL, J.:
This is a petition filed by Ventura Guzman, praying this
court, after proper proceedings, to render judgment
declaring illegal and void and setting aside the writ of
preliminary attachment issued by the respondent judge,
Honorable Simeon Ramos, as judge of the Court of First
Instance of Isabela, and ordering the dissolution thereof.
The pertinent facts necessary for the resolution of the legal
question raised in the present case are as follows:
On March 8, 1937, the respondent Alfredo Catolico brought
an action against the herein petitioner Ventura Guzman in
the Court of First Instance of Isabela, for the recovery from
the latter of the amount of his fees for services rendered by
him as attorney, praying, at the same time, for the
issuance of a writ of preliminary attachment against all of
the properties adjudicated to said petitioner in special
proceedings No. 179 of said court. As grounds for the
issuance of said writ of preliminary attachment, he alleged:
"That the herein defendant is trying to sell and dispose of
the properties adjudicated to him, with intention to defraud
his creditors, particularly the herein plaintiff, thereby
rendering illusory the judgment that may be rendered
against him, inasmuch as he has no other properties
outside the same to answer for the fees the court may fix in
favor of the plaintiff, this case being one of those mentioned
by the Code of Civil Procedure warranting the issuance of a
writ of preliminary attachment" (paragraph 8 of the
complaint there appears the following affidavits: "I, Alfredo
Catolico, of age, married and resident of Tuguegarao,
Cagayan, after being duly sworn, declare: That I am the
same plaintiff in this case; that I have prepared and read
the same (complaint) and that all the allegations thereof are
certain and true, to the best of knowledge and belief."
In view of the said complaint and affidavit, the respondent
judge, on March 10, 1937, issued an order granting the
petition and ordering the issuance of a writ of preliminary
attachment, after the filing of the corresponding bond by
the plaintiff.
On April 15, 1937, said defendant Ventura Guzman filed a
motion for the cancellation of said writ of preliminary
attachment on the ground that it had been improperly,
irregularly and illegally issued, there being no allegation,
either in the complaint or in the affidavit solemnizing it,
that there is no other sufficient security for the claim
sought to be enforced by the action; that the amount due
to the plaintiff, above the legal set-off and counterclaim, is
as much as the sum of which the preliminary attachment
has been granted, and that the affidavit of the plaintiff is
base in mere information and belief.
Said motion was denied by the respondent judge in an
order of July 10, 1937.
The only question to be decided in this case is whether or
not the requisites prescribed by law for the issuance of a
writ of preliminary attachment have been complied with.
Section 426 of the Code of the Civil Procedure provides that
"A judge or justice of the peace shall grant an order of
attachment when it is made to appear to the judge or
justice of the peace by the affidavit of the plaintiff, or of
some other person who knows the facts, that a sufficient
cause of action exists, and that the case is one of those
mentioned in section four hundred and twenty-four, and
that there is no other sufficient security for the claim
sought to be enforced by the action, and that the amount
due to the plaintiff above all legal set-offs or counterclaims
is as much as the sum for which the order is granted."
The petitioner, in attacking the legality and validity of the
writ of preliminary attachment, which is the subject matter
of this petition, relies on the alleged lack of an allegation in
the complaint or in the affidavit to the effect "that there is
no sufficient security for the claim sought to be enforced by
the action and that the amount alleged to be due to the
plaintiff above all legal set-offs and counterclaims is as
much as the sum for which the writ has been granted", and
on the fact that the affidavit is based on mere information
and belief of the plaintiff.
With respect to the last requisites just stated above, the
affidavit is not defective because in it the therein plaintiff
and herein respondent Alfredo Catolico states "that all the
allegations thereof are certain and true, to the best of my
knowledge and belief", and not that they are so according
to his information and belief.
AGUSTIN, E.P.
As to the other two requisites, there is no allegation, either

in the complaint or in affidavit solemnizing it, to the effect
that there is no other sufficient security for the claim which
the plaintiff seeks to enforce by his action, and that the
amount due him from the defendant, above all legal set-offs
and counterclaims, is as much as the sum for which the
writ of preliminary attachment has been granted. Now
then, does the omission of these two requisites constitute a
defect preventing a judge of the Court of First Instance
from issuing a writ of preliminary attachment?lawphil.net
Attachment is a juridical institution which has for its
purpose to secure the outcome of the trial, that is, the
satisfaction of the pecuniary obligation really contracted by
a person or believed to have been contracted by him, either
by virtue of a civil obligation emanating from contract or
law, or by virtue of some crime or misdemeanor that he
might have committed, and the writ issued, granting it, is
executed by attaching and safely keeping all the movable
property of the defendant, or so much thereof as may be
sufficient to satisfy the plaintiff's demands (sec. 428, Act
No. 190), or by filing a copy of said writ with the register of
deeds for the province in which the real property is
situated, whether standing upon the records in the name of
the defendant or not appearing at all upon the record,
which constitutes a limitation of ownership or the right to
enjoy or dispose of a thing without further limitations than
those established by law (art. 348, Civil Code), since the
owner of the property attached cannot dispose of the same
free of all liens and encumbrances. The law authorizing the
issuance of a writ of preliminary attachment should,
therefore, be construed strictly in favor of the judge should
require that all the requisites prescribed by law be
complied with, without which a judge acquires no
jurisdiction to issue the writ. If he does so in spite of
noncompliance with said requisites, he acts in excess of his
jurisdiction and with the writ so issued by him will be null
and void.
An affidavit is fatally defective where it fails to

comply, at least substantially, with a statutory
requirement that is shall state that the
indebtedness for which the action is brought has
not been secured by any mortgage or lien upon
real or personal property, or any pledge of
personal property, or, if so secured, that the
security has become valueless. . . . (6 C. J., 146,
paragraph 231.)
For the foregoing consideration, this court is of the opinion
and so holds that failure to allege in a complaint or in the
affidavit solemnizing it, or in a separate one, the requisites
prescribed by section 426 of the Code of Civil Procedure for
the issuance of a writ of preliminary attachment that there
is no other sufficient security for the claim sought to be
enforced by the action, and that the amount due to the
plaintiff above all legal set-offs or counterclaims is as much
as the sum for which the order is sought, renders a writ of
preliminary attachments issued against the property of a
defendant fatally defective, and the judge issuing it acts in
excess of his jurisdiction.
Wherefore, the writ of certiorari applied for is granted, and
the writ of preliminary attachment issued by the
respondent judge in civil case No. 1460 of the Court of First
Instance of Isabela, wherein the herein respondent Alfredo
Catolico is plaintiff and the herein petitioner Ventura
Guzman is defendant, is declared null and void, with costs
to respondent Alfredo Catolico. So ordered.
Abad Santos, Imperial, Diaz, Laurel and Concepcion, JJ.,
concur.
The jurisdiction of attachment proceedings being

a special one, it cannot be legitimately exercised
unless
the
attaching
creditor
pursues
substantially the essential requirements of the
statute, and the court can act only under the
special power limited by the statute and according
to the forms of procedures it prescribes. . . . (6 C.
J., 88, paragraph 121.)
Where the statutes requires the affidavit to show
that defendant is indebted to plaintiff in an
amount specified, or that the latter is entitled to
recover such an amount, over and above all legal
payments, set-offs, or counterclaims, compliance
with this requirement is essential to confer
jurisdiction to issue the writ. (6 C. J., 132,
paragraph 201.)
AGUSTIN, E.P.
2. SPOUSES SALGADO vs. CA

SECOND DIVISION
[G.R. No. 55381. March 26, 1984.]
SPOUSES JULIETA SALGADO and JOSE SALGADO,
Petitioners, v. HON. COURT OF APPEALS and
PHILIPPINE COMMERCIAL & INDUSTRIAL BANK,
Respondents.
Reyes & Reyes Law Office, for Petitioners.
San Juan Africa, Gonzales & San Agustin Law Office for
Private Respondent.
SYLLABUS
1.
REMEDIAL
LAW;
PROVISIONAL
REMEDIES;
ATTACHMENT; PURPOSE. The chief purpose of the
remedy of attachment is to secure a contingent lien on
defendants property until plaintiff can, by appropriate
proceedings, obtain a judgment and have such property
applied to its satisfaction, or to make some provision for
unsecured debts in cases where the means of satisfaction
thereof are liable to be removed beyond the jurisdiction, or
improperly disposed of or concealed, or otherwise placed
beyond the reach of creditors (7 C.J.S. 190).
2. ID.; ID.; ID.; REQUISITES FOR ISSUANCE SHALL NOT

ISSUE WHERE DEBTS SUFFICIENTLY SECURED;
REASON. The grounds upon which attachment may
issue are set forth in Section 1, Rule 57 of the Rules of
Court. But quite apart from the grounds stated therein, it
is further provided in Section 3 of Rule 57 that "an order of
attachment shall be granted only when it is made to appear
by the affidavit of the applicant or some other person who
personally knows the facts, that . . . there is no other
sufficient security for the claim sought to be enforced by
the action." The reason for the rule prohibiting attachment
where indebtedness was already secured is to prevent the
secured creditors from attaching additional property and
thus tying up more of the debtors property than was
necessary to secure the indebtedness (Blankenship v.
Myers, 54 P. 2d 314, 316; 97 Idaho 356 [1975]). Thus, to
sustain an order of attachment, "it is incumbent upon
plaintiff to establish either of these two facts, to wit: (a) that
the obligation had not been secured originally, or (b) that, if
secured at its beginning, the security later became
valueless." (Giandini v. Ramirez, 54 Pacific Reporter [2d]
91-92).
3. ID.; ID.; ID.; DISCHARGE THEREOF, WHEN PROPER.
Section 13, Rule 57 of the Rules of Court authorizes the
discharge of an attachment where the same had been
improperly or irregularly issued. In National Coconut
10
Corporation v. Hon. Potenciano Pecson, 90 Phil. 809, this

Court ruled that when the facts or some of them, stated in
the plaintiffs affidavit, are shown by the defendant to be
untrue, the writ of attachment may be considered as
improperly or irregularly issued.
4. ID.; ID.; ID.; ISSUANCE THEREOF STRICTLY

CONSTRUED IN FAVOR OF DEFENDANT. Since
attachment is a harsh and rigorous remedy which exposes
the debtor to humiliation and annoyance, the rule
authorizing its issuance must be strictly construed in favor
of the defendant. It should not be abused as to cause
unnecessary prejudice. It is the duty of the court before
issuing the writ to ensure that all the requisites of the law
has been complied with (Guzman v. Catolico, 65 Phil. 257;
Salas v. Adil, 90 SCRA 125).
AQUINO, J., dissenting:chanrob1es virtual 1aw library

1.
REMEDIAL
LAW;
PROVISIONAL
REMEDY;
ATTACHMENT; MAY ISSUE EVEN IF DEBT IS SECURED;
CASE AT BAR. A writ of attachment may be validly
issued although the debt sued upon is secured by
mortgages where such mortgages covered not only the debt
sued upon but also the debtors other obligations; where
the debtors failed to assign to the creditor bank their sugar
proceeds which they had given as security for their loan;
and where the writ is supported by a sufficient bond.
DECISION
ESCOLIN, J.:
This is a petition for review filed by the spouses Jose
Salgado and Julieta Salgado to set aside the resolution of
the then Court of Appeals in CA-G.R. No. SP-09407-R,
dated September 18, 1980, which authorized the issuance
of a writ of attachment against the property of said
petitioners.
The pertinent facts that gave rise to this petition are as
follows: On May 8, 1978, the Philippine Commercial and
Industrial Bank, hereinafter referred to as the Bank, filed
an action against petitioners, docketed as Civil Case No.
29392 of the then Court of First Instance of Rizal, to
recover on a promissory note in the amount of
P1,510,905.96, inclusive of interest and other bank
charges. In its verified complaint, the Bank further prayed
for the issuance of a writ of attachment. As grounds
therefor it alleged that petitioners had fraudulently
misappropriated and/or converted to their own personal
use and benefit the sugar proceeds given as security for the
payment of the indebtedness; that petitioners are guilty of
fraud in contracting their obligation and have concealed,
removed or disposed of the properties mortgaged or
assigned to the plaintiff, or are concealing, removing or
AGUSTIN, E.P.
disposing or about to do so, with intent to defraud their

creditor; that the obligation sought to be enforced is
genuine and, therefore, a sufficient cause of action exists;
and that there is no sufficient security for the claim sought
to be enforced by the action. Attached to the complaint was
the affidavit of Mrs. Helen Osias, Senior Branch Credit
Division Manager of the Bank, wherein she stated, among
others, "that there is no sufficient security for the claim
sought to be enforced by this action."cralaw virtua1aw
library
On May 9, 1978, the trial court issued an order granting
the Banks prayer for preliminary attachment upon a bond
in the sum of P1,510,905.96. Upon the filing of said bond,
the Deputy Provincial Sheriff levied upon several parcels of
land of petitioners situated in the province of Negros
Occidental.
On September 15, 1978, petitioners Salgado moved to
quash the writ of attachment on the ground that
respondent Bank made fraudulent misrepresentation in
securing the writ by deleting the words "R E M" or "Real
Estate Mortgage" from the xerox copy of the promissory
note attached to the complaint, thereby "making it appear
that the note was unsecured when in truth and in fact it
was fully secured by a series of valid and existing real
estate mortgages duly registered and annotated in the titles
of the affected real properties in favor of the plaintiff Bank."
In the same motion, petitioners stressed the lack of factual
basis of the Banks claim as to their alleged fraudulent
misappropriation or conversion of the sugar proceeds given
as security for their obligation.
After due hearing, the trial court issued an order dated
January 31, 1979 granting petitioners motion and lifting
the writ of attachment previously issued.
Upon denial of its motion for reconsideration the Bank
went to the Court of Appeals on a petition for certiorari to
annul the order of the trial court lifting the writ of
attachment.c
On November 29, 1979, the respondent Court of Appeals,
finding that the order of the trial court was not arbitrarily
issued, dismissed the petition for lack of merit.
However, on motion of the Bank, the respondent Court
reconsidered its decision of November 29, 1979 and issued
the questioned resolution dated September 18, 1980,
which authorized the issuance of a writ of attachment.
Hence, the present recourse.
We find the petition impressed with merit, The chief
purpose of the remedy of attachment is to secure a
contingent lien on defendants property until plaintiff can,
by appropriate proceedings, obtain a judgment and have
such property applied to its satisfaction, or to make some
provision for unsecured debts in cases where the means of
11
satisfaction thereof are liable to be removed beyond the

jurisdiction, or improperly disposed of or concealed, or
otherwise placed beyond the reach of creditors. 1
The grounds upon which attachment may issue are set
forth in Section 1, Rule 57 of the Rules of Court. But quite
apart from the grounds stated therein, it is further
provided in Section 3 of Rule 57 that "an order of
attachment shall be granted only when it is made to appear
by the affidavit of the applicant or some other person who
personally knows the facts, that . . . there is no other
sufficient security for the claim sought to be enforced by
the action."
The reason for the rule prohibiting attachment where
indebtedness was already secured is to prevent the secured
creditors from attaching additional property and thus tying
up more of the debtors property than was necessary to
secure the indebtedness. 2 Thus, to sustain an order of
attachment, "it is incumbent upon plaintiff to establish
either of these two facts, to wit: (a) that the obligation had
not been secured originally, or (b) that, if secured at its
beginning, the security later became valueless." 3
In the instant case, the allegation in the affidavit of the
Banks Credit Division Manager, Mrs. Helen Osias, to the
effect that "there is no sufficient security for the claim
sought to be enforced by this action" has been shown to be
false. It is undisputed that the note sued upon "is fully
secured by a series of valid and existing real estate
mortgages duly registered and annotated in the titles of the
affected real property in favor of the plaintiff Bank."
virtua1aw
library
Section 13, Rule 57 of the Rules of Court authorizes the
discharge of an attachment where the same had been
improperly or irregularly issued. In National Coconut
Corporation v. Hon. Potenciano Pecson, 4 this Court ruled
that when the facts or some of them, stated in the
plaintiffs affidavit, are shown by the defendant to be
untrue, the writ of attachment may be considered as
improperly or irregularly issued.
Since attachment is a harsh and rigorous remedy which
exposes the debtor to humiliation and annoyance, the rule
authorizing its issuance must be strictly construed in favor
of the defendant. It should not be abused as to cause
unnecessary prejudice. It is the duty of the court before
has been complied with.
Accordingly, the resolution of the respondent Court of
Appeals, now the Intermediate Appellate Court, dated
September 18, 1980, is hereby set aside. No costs.
SO ORDERED.
Concepcion, Jr., Guerrero, Abad Santos and De Castro,
JJ., concur.
AGUSTIN, E.P.
Separate Opinions
million two hundred fifty thousand pesos as moral and

exemplary damages and attorneys fees.
AQUINO, J., dissenting:chanrob1es virtual 1aw library
The bank opposed the motion. In a manifestation dated

June 10, 1982, it apprised this Court that Judge Pineda
issued an order dated January 4, 1982 wherein he set
aside Judge Valdellons decision and ordered the Salgados
to pay the bank P1,300,000 plus interest and penalties,
bank charges and attorneys fees as stipulated in the
promissory note, Exhibit A. Judge Pineda denied the
Salgados motion for reconsideration. (The Salgados
appealed to the Intermediate Appellate Court, AC-G.R. No.
00119.)
I dissent with deference to Justice Escolins opinion. On

May 8, 1978, the Philippine Commercial & Industrial Bank
filed an ordinary action against the Salgado spouses
(residents of Kabankalan, Negros Occidental) in the Court
of First Instance of Pasig, Rizal for the collection of the sum
of P1,510.905.96 as the debt due from the Salgado spouses
on their loan for the crop-year 1975-76, with a prayer for a
writ of attachment, considering that there was allegedly no
sufficient security for the debt.
The attachment was granted by Judge Nelly L. Romero
Valdellon on the following day, May 9, subject to the filing
of a bond in the amount of the obligation, P1,510,905.96.
The Salgados moved to quash it on the ground that there
was misrepresentation on the part of the bank that there
was no security for the loan. They charged that the bank
tampered with the promissory note by erasing the acronym
"REM" (meaning real estate mortgages), thus giving the
false impression that there was no security.
I am of the opinion that the writ of attachment was

properly issued. It is supported by a sufficient bond. The
bank posted a bond of P1,510,905.96. The 1981 resolution
dismissing the instant appeal should be reaffirmed.
Makasiar, J., dissents.
The bank countered that it did not resort to foreclosure

because the mortgages (Exh. 6 to 10) covered not only the
debt of the Salgados for the crop-year 1975-76 but also
their obligations for the crop-years 1976-77 and 1977-78
and an additional commercial loan. The Salgados admitted
that they did not assign to the bank their sugar for the
1975-76 crop-year. That was why the loan was not paid.
On January 31, 1979, Judge Valdellon dissolved the
attachment. About a month later, Julieta Chua Salgado
transferred four pieces of real property covered by the
attachment to her sisters Jimema Chua Ang and Soledad
Chua Montilla, her brother Romeo G. Chua and her
daughter, Mary Jane Salgado.
The bank assailed the dissolution order by certiorari in the
Court of Appeals. In a decision dated November 29, 1979,
Justices Nocon, Samuel F. Reyes and Victoriano upheld the
dissolution order because the bank allegedly acted
fraudulently in tampering with the note, making it appear
that the loan was unsecured when in fact it was secured by
mortgages.
The bank filed a motion for reconsideration. In the
resolution of September 18, 1980, the same three Justices
set aside their decision and sustained the attachment.
They held that the dissolution was made on grounds not
mentioned in section 13 of Rule 57.c
The Salgados appealed to this Court or December 3, 1980.
The instant appeal was dismissed for lack of merit in this
Courts resolution of June 26, 1981. The Salgados filed a
motion for reconsideration wherein they stated that Judge
Valdellon in a decision dated July 16, 1981 dismissed the
banks complaint and ordered it to pay the Salgados one
12
AGUSTIN, E.P.
Nature and Scope:

Attachment Purely Statutory
1. US vs. NAMIT
EN BANC
[G.R. No. 12957. October 29, 1918. ]
THE UNITED STATES, Plaintiff-Appellee, v. PONCIANO

NAMIT, Defendant-Appellant.
Ramon Maza, for Appellant.
Acting Attorney-General Paredes, for Appellee.
SYLLABUS
1. CRIMINAL LAW; SURPRISE AS CONSTITUTIVE
ELEMENT OF "ALEVOSIA." The circumstance that an
attack is sudden and unexpected to the person assaulted
does not constitute the element of alevosia necessary to
raise homicide to murder, where it does not appear that the
aggressor adopted such mode of attack to facilitate the
perpetration of the homicide without risk to himself.
2. CRIMINAL PROCEDURE; ATTACHMENT AS REMEDY
TO ENFORCE CIVIL LIABILITY. The remedy of
attachment which was available under the Spanish system
of criminal procedure was abrogated upon the adoption of
General Orders No. 58, and was not perpetuated by the
reservation contained in section 107 of this law.
3. ATTACHMENT, CIVIL LIABILITY INCIDENT TO
CRIME. In the prosecution of a person accused of
murder the heirs of the person slain intervened
immediately before the judgment of condemnation was
entered and obtained from the court an order for the
attachment of the property of the accused on the ground
that he was fraudulently disposing of his property to evade
the civil liability to which he would be subject in case of
conviction. Held: That the attachment could not be
sustained, either under article 589 of the Spanish Law of
Criminal Procedure or under sections 424 and 412 of the
Code of Civil Procedure.
DECISION
STREET, J. :
This appeal is brought to this Court to reverse a judgment

of the Court of First Instance of the Province of Antique,
13
adjudging the defendant guilty of the crime of murder and

sentencing him to cadena perpetua, with the accessories
provided by law, and requiring him to indemnify the heirs
of the deceased in the sum of P1,000, and to pay the costs.
It appears in evidence that between 6 and 7 oclock in the
evening of February 24, 1917, the deceased, Damiano
Jordan, and a neighbor, one Fernando Martinez, were
talking with each other while standing in the street
immediately in front of Jordans house in the municipality
of Sibalom, Province of Antique. While they were so
engaged in conversation they were approached by the
accused, Ponciano Namit. The latter was at the time
apparently entering upon duty as a guard of the round in
the capacity of substitute for a son whose turn fell upon
this night.
As Ponciano Namit came up he stopped and asked
Fernando Martinez if he was on guard that night. Upon
receiving an affirmative reply, he asked Damiano Jordan if
he too was on guard, and Damiano replied that he was not
as it was not his turn. Ponciano thereupon at once ordered
Damiano to go up into his house, and as Damiano did not
instantly obey, Ponciano in a few moments repeated the
command. Damiano then replied that he was going, and
suiting his actions to his words, turned to start for his
house. As he was turning, Ponciano struck him a blow on
the left frontal part of the head with a heavy stick.
The end of this stick was supplied with a hatchet-shaped
object, possibly of metal, and the knob of this instrument
crushed into the head of Damiano and, penetrating into the
brain, there momentarily remained. Ponciano by giving the
stick a jerk succeeded in freeing it and immediately left the
scene of the crime. When he pulled the stick out, Damiano
fell to the ground. Damianos wife who was sitting in the
door of their house only a short distance away, saw what
had happened and immediately ran down to her husband
and told Fernando to aid her in carrying him to the house,
which he did. The injured person lived for about six days
and died as a result of the wound. It was shown by an
autopsy performed on the body that a hole was made in the
skull about as large as a half peso coin. No motive
sufficient to account for this unjustifiable attack was
proved, though there is a suggestion in the evidence that
Ponciano may have been drinking.
After a careful review of the evidence we see no reason for
discrediting the testimony of the two eyewitnesses for the
prosecution. We find no material contradiction in their
statements made either at the trial of this case or at the
time of the commission of the crime. The story told by the
wife of the deceased, Bonifacia Tubigon, appears to be a
simple and truthful narrative. The same may be said with
regard to the testimony of Fernando Martinez. Both
witnesses apparently evince a desire to tell what happened
without exaggeration or distortion. Another witness for the
prosecution, Aurelio Sildo, testified that on the night in
AGUSTIN, E.P.
question the accused admitted that he had the misfortune

to strike Damiano Jordan.
At the trial the accused did not directly admit having
struck the fatal blow to Damiano; but he claimed that on
the night in question he was passing the place of this
occurrence and was there assaulted by some unknown
person with a stick. He says that he and the assailant
struggled for the possession of the stick and that finally he,
Ponciano, kicked his adversary, who fell down, whereupon
Ponciano departed. We consider this story unlikely; and the
judge of the trial court was, we think, fully justified in
finding, as he did, that the accused is the person who
caused the death of Damiano Jordan.
Although the complaint charges alevosia (treachery) as a
qualifying circumstance in the commission of the crime,
thus elevating the offense to the degree of murder, and
although the judge of the trial court found that this
element was present in the commission of the offense, we
are not satisfied with his conclusion on this point. It is true
the two principal witnesses testify that the blow was given
after Damiano Jordan had turned his back to the accused;
but the blow was struck, evidently with great force, upon
the left frontal side of the head of Damiano, and it is
manifest that this could have been done only if the accused
is a left-handed person, supposing him to be standing
behind his victim. There is no evidence, however, that
Ponciano Namit is left-handed; and inasmuch as
righthandedness prevails among the great majority, it is to
be presumed, in the absence of evidence to the contrary,
that the accused is right-handed.
This circumstance raises in our mind a reasonable doubt
as to whether the parties may not have been facing each
other when the blow was delivered. If such were the case, it
would be improper to find that the offense was qualified by
alevosia. It must be admitted that the attack was sudden
and unexpected to Damiano Jordan, and it would perhaps
be possible to found upon this the conclusion that the
attack was characterized by surprise in such sense as to
constitute alevosia. However, in considering a question of
this kind, every case must be judged by its particular facts;
and we find nothing in the evidence to show with certainty
that the aggressor consciously adopted a mode of attack
intended to facilitate the perpetration of a homicide without
risk to himself. A more reasonable, though still doubtful,
inference would possibly be that he did not in fact intend to
kill Damiano at all.
In this connection it is worth while to note that Bonifacia
Tubigon declares that immediately after the blow was
struck Ponciano Namit exclaimed "I have long desired to
strike some one and I have done so." ("Yo desde antes tenia
ganas de pegar a alguien, y he pegado.") This would seem
to indicate, in the absence of proof of other motive, that the
accused was moved by a sudden desire to use his stick and
that he struck in obedience to this unreasoning impulse,
without thinking of the conditions under which he was
14
acting. Upon the whole we incline to the opinion that the

fatal blow was the result of a casual encounter under
conditions not sufficiently defined to enable us to say that
alevosia
was
certainly
present
in
the
case.
The offense committed is, in our opinion, to be qualified as
homicide, under article 404 of the Penal Code, in the
estimation of which no generic circumstance either of an
aggravating or attenuating nature should be taken into
consideration; and the proper penalty is reclusion temporal
in its medium degree. The accused should accordingly be
sentenced to 14 years 8 months and 1 day, reclusion
temporal, with the accessories prescribed in article 59 of
the
Penal
Code.
Another feature of the case of some importance is
presented in connection with an attachment levied upon
the property of the accused to secure the satisfaction of the
civil liability incident to the commission of the homicide. It
appears that while the cause was pending in the Court of
First Instance an attorney appeared in the capacity of
private prosecutor, representing the widow of the deceased.
and presented an affidavit showing that the accused was
selling his property in order to elude the payment of any
indemnity to which he would be liable in case of conviction.
It was accordingly requested that an attachment should be
issued against his property. An order was thereupon made
by the court upon April 25, 1917, authorizing an
attachment of property to the value of P1,500, unless he
should give bond to answer in that amount. The clerk of
the court issued the order of attachment upon the same
date, and three days later the court rendered its decision
finding the accused guilty and ordering him to indemnify
the widow and children of the deceased in the sum of
P1,000. The attachment was not immediately levied; but
after an appeal had been taken, the sheriff, on November
28, 1917, levied the same upon five parcels of land and a
house belonging to the accused. It does not appear from
the record in this case whether the accused has ever given
the bond necessary to procure the dissolution of this
attachment, although upon December 19, 1917, after the
cause had been brought to this Court by appeal, an order
was here entered authorizing the Court of First Instance to
act in the matter of dissolving the attachment, if bond
should
be
given.
It is argued that the attachment granted in this case is
sustainable under article 589 of the Law of Criminal
Procedure of Spain, which is to the following
effect:jgc:chanrobles.com.ph
"ART. 589. When from the record of a cause appear
circumstances tending to establish the guilt of a person,
the judge shall require him to give a bond sufficient to
secure the pecuniary liabilities which may be finally
adjudged, ordering in the same decree the attachment of
sufficient property to cover such liabilities, should he fail to
give
bond.
"The amount of the bond shall be fixed in the same decree
AGUSTIN, E.P.
and it shall not be less than one third of the probable

amount of the pecuniary liabilities."
We are of the opinion that this provision and those related
to it in the Spanish Code of Criminal Procedure were
abrogated by necessary implication upon the enactment of
General Orders No. 58. It is true that section 107 of this
law recognizes the existence of the civil liability connected
with the commission of crime and reserves "the privileges"
previously secured by law to the person injured by the
commission of an offense to take part in the prosecution
and to recover damages. Nevertheless, we think that the
word "privilege," as here used, cannot be understood as
referring to the procedure contained in the Spanish Code of
Criminal Procedure relating to the attachment of property
and giving of bond.
Upon reading the entire section 107 of General Orders No.
58, it appears obvious that the right which was intended to
be saved by the reservation therein made was the right of
the party injured to appear and to be heard in all states of
the case with reference to such liability and to obtain a
judgment for the damages occasioned by the wrongful act,
as well as the further right to appeal from any decision of
the court denying any legal right connected therewith.
It is to be noted that while the "sumario" of Spanish
criminal procedure is in many respects similar to the
preliminary hearing before a committing magistrate
conducted pursuant to sections 13 and 14 of General
Orders No. 58, there is nevertheless an important
difference, which is that the "sumario" constitutes a
preliminary stage in the criminal prosecution, and is not
merely a step preparatory to the initiation of the
proceedings. The evidence taken in the "sumario" was,
therefore, capable of being used in the plenary stage of the
prosecution; and if ratification was not required, served as
the basis of judgment. (Ley de 18 de junio de 1870 Law
of June 18, 1870.) On the contrary, the proceedings in the
preliminary hearing never constitute a basis for a
subsequent judicial declaration of guilt. The "sumario" has
been abrogated by the enactment of General Orders No. 58,
above referred to; and the ground expressed in article 589
of the Spanish Code of Criminal Procedure for the
attachment of the property of the accused therefore no
longer here exists.
With the adoption of General Orders No. 58, there was
necessarily introduced into these Islands a system of
criminal procedure embodying the principles recognized in
the system of criminal procedure generally in vogue in the
United States; and any characteristic or rule of the former
system inconsistent with these principles must be held to
have been abrogated. Attachment in American law is a
purely statutory remedy. It does not exist unless expressly
given by statute and as it is an extraordinary and summary
remedy, it is unavailable except in those cases where the
statute expressly permits its issuance.
15
It remains to consider whether or not the attachment can

be sustained under the provisions of section 424, in
connection with subsection 5 of section 412 of the Code of
Civil Procedure. The affidavit made in this case states
substantially, we think, that the accused was selling his
property with the intent to defraud the persons interested
in the enforcement of the civil liability; but considered as
an application for an attachment under the provisions
above cited, in connection with section 426 of the same
Code, the affidavit was in several respects defective.
Disregarding these informalities, however, we are of the
opinion that the remedy of attachment there provided is
not available as an aid to the enforcement of the civil
liability incident to prosecution for crime. These provisions
contemplate the pendency of a civil action, and the remedy
of attachment is merely an auxiliary to such action. Section
795 of the Code of Civil Procedure, in its first paragraph,
declares that the procedure in all civil actions shall be in
accordance with the provisions of said Code; and it is quite
evident that the Legislature in adopting this Code could not
have intended to make its provisions in any respect
applicable to the proceedings in a criminal prosecution.
The mere circumstance that a civil liability can be made
the subject of recovery in a criminal prosecution is in our
opinion no sufficient reason for holding that the remedy of
attachment as designated for use in a civil action is
available in the criminal proceeding.
From what has been said it results that the attachment
effected under the order of the Court of First Instance
dated April 25, 1917, must be considered to have been
improvidently granted. The same is hereby declared to be of
no effect, but this declaration will of course in no wise
prejudice the right of the widow and children of the
deceased to enforce the payment of the indemnity for which
judgment was rendered against the accused. The judgment
of the trial court, in respect to the penalty imposed upon
the accused, is modified by substituting 14 years 8 months
and 1 day, reclusion temporal, with the accessories
prescribed in article 59 of the Penal Code for so much
thereof as imposes the penalty of cadena perpetua, with the
accessories prescribed in article 54 of the same Code. As
thus modified the judgment of the lower court is affirmed,
with costs against the appellant. So ordered.
Torres, Johnson, Avancea and Fisher, JJ., concur.
Separate Opinions
MALCOLM, J., dissenting:chanrob1es virtual 1aw library

I agree with the main decision in its discussion of the facts
and its qualification of the crime. I agree again that article
589 of the law of Criminal Procedure of Spain was
necessarily abrogated upon the promulgation of General
Orders No. 58. I do not agree with the proposition that
attachment cannot be levied upon the property of the
accused to secure the satisfaction of the civil liability
AGUSTIN, E.P.
incident to the commission of the homicide. In my

judgment such action is both legal and proper.
The law of the Philippine Islands is made up of certain
parts which we call statutes or codes. Yet this law is, if we
interpret
it understandingly,
a
harmonious
and
symmetrical system. To give unity to the whole, it is
essential to visualize the law in its entirety and not as
isolated segments. Even as to the codes, none is sufficient
unto itself. For convenience each code is given a title which
it treats of fully, but never completely. Each code
necessarily must and should blend into every other code.
To borrow a phrase of statutory construction, codes are in
a sense in pari materia. For one to enumerate examples
would be to demonstrate the obvious.
There is no doubt as to the civil liability of a person for his
criminal acts. To follow the doctrine laid down by Justice
Torres in the United States v. Bernardo ([1911], 19 Phil.,
265):jgc:chanrobles.c
"Every crime or misdemeanor gives rise to a penal or
criminal action for the punishment of the guilty party, and
also to a civil action for the restitution of the thing, repair
of the damage, and indemnification for the losses;
wherefore, after the prosecution of the criminal action, it
shall be understood that the civil action has been utilized.
for the reason that every person criminally liable for a
crime or misdemeanor is also civilly liable (art. 17, Penal
Code), unless the aggrieved party should expressly waive
his right (art. 23)." (Syllabus.)
When, therefore, in a criminal action the courts are
permitted to give judgment for a civil indemnity, they
necessarily must have the power to make this remedy
effective. This can only be done by going to the Code of Civil
Procedure, which contains the appropriate provisions
governing the subject of attachment. It would seem to be
self-evident that the property of the accused should be kept
intact to satisfy the civil judgment. Any other hypothesis
would permit the accused to dispose of his property in
order to escape the fulfillment of the entire judgment and
to defeat the purposes of the law.
With the exception above noted, the judgment is correct.
16
AGUSTIN, E.P.

SUPREME COURT
Manila
2. GENERAL vs. DE VENECIA

Facts:
This is a petition for certiorari to annul the order of the
lower court denying the motion to dismiss the complaint
filed by Ruedas against General.
The plaintiff prayed for preliminary attachment of the
defendants property upon the allegation that the latter was
about to dispose his assets to defraud his creditors.
Two days later, the writ of attachment was issued upon the
filing of a suitable bond.
General submitted a motion praying for the dismissal of the
complaint and dissolution of the attachment. He claimed it
was premature in view of the debt moratorium of the
President of RP.
It was denied, prompting for the institution of the special
civil action.
Issue: WON it was proper for the court to issue the writ of
attachment in view of the debt moratorium.
Held:
No. SC held that no court may proceed to hear a complaint
that seeks to compel payment of monetary obligation
coming within the purview of the moratorium. And the
issuance of a writ or attachment upon such complaint may
not, of course, be allowed.
Such levy is necessarily one step in the enforcement of the
obligation, enforcement of which, as stated in the order, in
suspended temporarily, pending action by the Government.
But the PM signed by the petitioner provides that he
promised to pay Php 4,000 within 6 months after peace
has been declared. As of the time the case was heard, there
was yet any peace treaty drafted between the US and
Japan. It is obvious that the 6-month period has not
begun, and that the debt of General is not yet demandable.
General Rule provides that, unless the stature expressly so
provides, the remedy by attachment is not available in
respect to a demand which is not due and payable, and if
an attachment is issued upon such a demand without
statutory authority is void.
Inasmuch as the commitment of General has not as yet
become demandable, there existed no cause of action
against him, and the complaint should have been
dismissed and the attachment lifted.
17
EN BANC
G.R. No. L-894
July 30, 1947
LUIS F. GENERAL, petitioner,

vs.
JOSE R. DE VENECIA, Judge of First Instance of
Camarines Sur, and PETRA VDA. DE RUEDAS, also
representing Ernesto, Armando and Gracia (minors),
respondents.
Cea, Blancaflor and Cea for petitioner.
Jose M. Peas for respondents Ruedas.
No appearance for the respondent judge.
BENGZON, J.:
Petition for certiorari to annul the order of the Court of First
Instance of Camarines Sur denying the motion to dismiss
the complaint, and to vacate the attachment issued, in civil
case No. 364 therein entitled, "Ruedas vs. Luis F. General."
That complaint was filed on June 4, 1946, to recover the
value of a promissory note, worded as follows:
For value received, I promise to pay Mr. Gregorio
Ruedas the amount of four thousand pesos
(P4,000), in Philippine currency within six (6)
months after peace has been declared and
government established in the Philippines.
Naga, Camarines Sur, September 25, 1944.
(Sgd.) LUIS F. GENERAL
It prayed additionally for preliminary attachment of

defendant's property, upon the allegation that the latter
was about to dispose of his assets to defraud creditors. Two
days later, the writ of attachment was issued upon the
filing of a suitable bond.
Having been served with summons, the defendant therein,
Luis F. General, submitted, on June 11, 1946, a motion
praying for dismissal of the complaint and dissolution of
the attachment. He claimed it was premature, in view of
the provisions of the debt moratorium orders of the
President of the Philippines (Executive Orders Nos. 25 and
32 of 1945). Denial of this motion and of the subsequent
plea for reconsideration, prompted the institution of this
special civil action, which we find to be meritorious, for the
reason that the attachment was improvidently permitted,
AGUSTIN, E.P.
the debt being within the terms

moratorium (Executive Order No. 32).
of the
decree
of
It is our view that, upon objection by the debtor, no court

may now proceed to hear a complaint that seeks to compel
payment of a monetary obligation coming within the
purview of the moratorium. And the issuance of a writ of
attachment upon such complaint may not, of course, be
allowed. Such levy is necessarily one step in the
enforcement of the obligation, enforcement which, as stated
in the order, is suspended temporarily, pending action by
the Government.
But the case for petitioner is stronger when we reflect that
his promise is to pay P4,000 "within six months after peace
has been declared." It being a matter of contemporary
history that the peace treaty between the United States and
Japan has not even been drafted, and that no competent
official has formally declared the advent of peace (see
Raquiza vs. Bardford, 75 Phil., 50), it is obvious that the
six-month period has not begun; and Luis F. General has
at present and in June, 1946, no demandable duty to make
payment to plaintiffs, independently of the moratorium
directive.
On the question of validity of the attachment, "the general
rule is that, unless the statute expressly so provides, the
remedy by attachment is not available in respect to a
demand which is not due and payable, and if an
attachment is issued upon such a demand without
statutory authority it is void." (7 C.J.S., p. 204.)
It must be observed that under our rules governing the
matter the person seeking a preliminary attachment must
show that "a sufficient cause of action exists" and that the
amount due him is as much as the sum for which the
order of attachment is granted" (sec. 3, Rule 59). Inasmuch
as the commitment of Luis F. General has not as yet
become demandable, there existed no cause of action
against him, and the complaint should have been
dismissed and the attachment lifted. (Orbeta vs. Sotto, 58
Phil., 505.)
And although it is the general principle that certiorari is not
available to correct judicial errors that could be
straightened out in an appeal, we have adopted the course
that where an attachment has been wrongly levied the writ
may be applied for, because the remedy by appeal is either
unavailable or inadequate. (Leung Ben vs. O'Brien, 38
Phil., 182; Director of Commerce and Industry vs.
Concepcion, 43 Phil., 384; Orbeta vs. Sotto, supra.)
Wherefore, the writ of attachment is quashed and the
complaint is dismissed. Costs for petitioner. So ordered.
Moran, C.J., Paras, Feria, Pablo, Hilado, Padilla, and
Tuason,
JJ.,
concur.
Perfecto, J., concurs in the result.
18
AGUSTIN, E.P.
Strict Compliance with the Rule
1. GRUENBERG vs. CA
SUPREME COURT
Manila
suits against him for collection of unpaid

obligations, and the latter had unpaid
obligation to plaintiff Elda R, Flores
(private respondent) in the amount of
P13,000.00, exclusive of interest and
collection charges, patently and clearly
can no longer be paid or liquidated.
On March 1, 1974, petitioners filed their
answer to the complaint.
FIRST DIVISION
G. R. No. L-45948 September 10, 1985
MERCEDES GRUENBERG and ALBERT GRUENBERG,
petitioners,
vs.
HONORABLE COURT OF APPEALS, HONORABLE LINO
L. AOVER and ELDA R. FLORES, respondents.
Perlas, Joven & Associate Law Office for private respondent.
GUTIERREZ, JR., J.:
This is a petition to review the decision of the Court of
Appeals, now Intermediate Appellate Court, which affirmed
the order for the issuance of a writ of preliminary
attachment, and other related orders of the then Court of
First Instance of Rizal in Civil Case No. Q-18444.
The antecedent facts are summarized by the appellate
court as follows:
Petitioners are the defendants and
private respondent is the plaintiff in Civil
Case No. Q-18444, Court of First
Instance of Rizal, Branch XVII-B-Quezon
City, for annulment of sale, recovery of
ownership and possession of the house
and lot situated at No. 24 Scout
Limbaga, Diliman, Quezon City, the
same, allegedly, having been sold in
fraud of creditors.
Private respondent filed the complaint in
Civil Case No. Q18444, in her capacity
as the administratrix of the intestate
estate of the late William Gruenberg.
It is alleged in the complaint in Civil
Case No. Q-18444 that the house and lot
in question, which were sold to
defendant Albert Gruenberg (one of the
petitioners), form part of the conjugal
partnership of the Gruenberg spouses,
which must answer for the obligations
that deceased William Gruenberg might
have incurred during his lifetime in his
capacity as manager and administrator
of the conjugal partnership; and that the
sale of the house and lot before the
death of William Gruenberg, when at
that time two creditors had already filed
19
Under date of February 7, 1976, private

respondent filed a 'Motion for Issuance of
Writ of Preliminary Attachment' against
the properties of petitioners, alleging,
among others, that the latter are
indebted to her in the principal amount
of P13,000.00, which, according to her,
she seeks to recover in Civil Case No. Q18444.
On March 1, 1976, petitioners filed their
opposition to the motion for the issuance
of writ of preliminary attachment,
alleging among others, that Civil Case
No. Q-18444 is an action for annulment
of sale and recovery of the house and lot
mentioned therein, and not for recovery
of sum of money. It is contended that a
writ of preliminary attachment is not the
proper remedy for the protection of the
rights of the estate. In the same
opposition,
petitioners
refuted
the
allegations of private respondent in her
motion that the complaint in Civil Case
No. Q-18444 is one for collection of a
sum of money allegedly contracted
fraudulently by petitioners.
On March 26, 1976, respondent Judge
issued an order, granting the motion of
private respondent and issuing a writ of
preliminary attachment against the
properties of petitioners, respondent
Judge stating that no opposition had
been filed to the motion.
In the latter part of July, 1976,
respondent Sheriff and/or his deputies
served on petitioners and the managers
of the Hollywood Theater, Palace Theater
and Illusion Theatre a writ of preliminary
attachment and notice of garnishment
against petitioners and personally in
favor of respondent Flores.
It is alleged that the order of respondent
Judge was not received by petitioners'
new counsel but upon being informed by
petitioners of the writ of preliminary
attachment and notice of garnishment,
petitioners'new counsel promptly went to
the court of respondent Judge and then
and there he discovered that petitioners'
opposition to the motion was not
attached to the record, because the same
AGUSTIN, E.P.
was forwarded to Branch XVIII to which

Civil Case No. Q-18444 was originally
assigned,
On July 30, 1976, petitioners filed (a) a
motion for reconsideration of the order
granting the motion for the issuance of a
writ of preliminary attachment, and (b) a
motion to recall the writ of preliminary
attachment and notice of garnishment,
on the ground that it is not true that
petitioners did not oppose the motion of
private respondent, and that there is no
valid basis to grant the motion.
On August 16, 1976, respondent Judge
issued an order, denying the motions of
petitioners.
On October 28, 1976, respondent Judge
issued an order, requiring petitioners to
appear before his court to explain why
they should not be punished for
contempt for denying or disobeying the
lawful processes of the court.
The issuance of the "show cause" order prompted the
petitioners to file a petition for certiorari with writ of
preliminary injunction in the Court of Appeals. The petition
was dismissed. Hence, the instant petition
The issues raised to us are embodied in the petitioners'
assignments of errors as follows:
I. THE COURT OF APPEALS ERRED IN
OVERLOOKING THE FACT THAT WRIT
OF
PRELIMINARY
ATTACHMENT
COULD ONLY BE GRANTED TO
SECURE THE SATISFACTION OF A
JUDGMENT IN A CASE IN WHICH SAID
WRIT IS PRAYED FOR;
II. THE COURT ERRED IN SUSTAINING
THE ISSUANCE OF THE WRIT OF
PRELIMINARY ATTACHMENT FOR THE
PERSONAL BENEFIT OF PRIVATE
RESPONDENT IN CIVIL CASE NO. Q18444, NOTWITHSTANDING THE FACT
THAT SAID RESPONDENT INSTITUTED
SAID ACTION NOT IN HER PERSONAL
CAPACITY, BUT AS ADMINISTRATRIX
OF THE ESTATE OF THE LATE WILLIAM
GRUENBERG, SR.;
III. THE COURT OF APPEALS ERRED IN
RULING THAT PETITIONERS CAN BE
CITED FOR CONTEMPT FOR THE
ALLEGED FAILURE TO COMPLY WITH
THE
NOTICE
OF
GARNISHMENT
ADDRESSED TO THIRD PARTIES.
The issues are interrelated and may be discussed together.
They all focus on the proprietary of the writ of attachment
20
and garnishment against the petitioners' properties issued

by the trial court and affirmed by the appellate court.
In her affidavit supporting the motion for a writ of
preliminary attachment, the private respondent stated that
her case "... is one of the situations covered by Section 1
(d), Rule 57 of the Rules of Court whereby a writ of
preliminary attachment may issue." Section 1 (d), Rule 57
provides:
Grounds upon which attachment may
issue.A plaintiff or any proper party
may, at the commencement of the action
or at any time thereafter, have the
property of the adverse party attached as
security for the satisfaction of any
judgment that may be recovered in the
following cases:
xxx xxx xxx
(d) In an action against a party who has
been guilty of a fraud in contracting the
debt or incurring the obligation upon
which the action is brought, or in
concealing or disposing of the property
for the taking, detention or conversion of
which the action is brought.
xxx xxx xxx
There are various reasons why this petition should prosper.
Private respondent Elda R. Flores, as a claimant for
P13,000.00 against the estate of William Gruenberg, Sr.,
was appointed administratrix of the estate of the deceased.
In her capacity as administratrix, she filed Civil Case No.
Q-18444 against the petitioners. This main case was for
the annulment of a deed of sale executed by the late
William Gruenberg, Sr., in favor of Albert Gruenberg and
for the recovery of possession and ownership of the house
and lot involved in that sale.
The motion for a writ of preliminary attachment filed by
Flores, however, states:
1. Defendants are indebted to plaintiff in
the amount of P13,000.00 exclusive of
accrued interest and collection charges,
which plaintiff seeks to recover in the
instant action; and
2. Defendants are guilty of fraud in
contracting the debt or incurring the
obligation due plaintiff in that they
conspired and confederated with each
other as mother End son to defraud
other creditors one of whom is plaintiff,
by simulating the sale of house and lot
situated at No. 24 Scout Limbaga Street,
Quezon City ... .
AGUSTIN, E.P.
While the respondent filed the motion in her capacity as

administratrix of the Gruenberg estate, the motion for a
writ of attachment and its supporting affidavit show that
the attachment was intended to secure only her
P13,000.00 claim against the estate. Obviously, this cannot
be done.
The rules on the issuance of a writ of attachment must be

construed strictly in favor of the defendant. The remedy of
attachment is harsh, extraordinary, and summary in
nature. If all the requisites for the issuance of the writ are
not present, the court which issues it acts in excess of its
jurisdiction.
A writ of attachment is a remedy ancillary to the principal

proceeding. The well-entrenched principle is that:
In Salas v. Adil (90 SCRA 121), we stated:
Attachment is a juridical institution

which has for its purpose to secure the
outcome of the trial, that is, the
satisfaction of the pecuniary obligation
really contracted by a person or believed
to have been contracted by him, either
by virtue of a civil obligation emanating
from contract or from law, or by virtue of
some crime or misdemeanor that he
might have committed, and the writ
issued, granted it, is executed by
attaching and safely keeping all the
movable property of the defendant, or so
much thereof as may be sufficient to
satisfy the plaintiff's demands ... .
(Guzman v. Catolico, et al., 65 Phil. 257).
The purpose behind the filing of the complaint was to
recover a piece of property allegedly belonging to the
intestate estate of the deceased. Hence, any writ of
attachment necessary to secure the judgment must be
related to the protection of the estate. The writ may not
issue if only to protect the personal interests of the private
respondent as a creditor of that estate.
The records show that the private respondent's interest in
the estate is to recover a debt based on a contract with the
deceased Gruenberg, For this reason, she instituted the
special proceedings for the settlement of the intestate
estate resulting to her appointment as administratrix.
Under these circumstances, the private respondent's
remedy to recover the outstanding debt of the deceased is
to follow the procedure in Rule 86 on claims against an
estate. As a matter of fact, if an administrator has a claim
against an estate, Section 8 of Rule 86 calls for the
appointment of a special administrator to defend the estate
against such claim.
A court order which violates the Rules constitutes grave
abuse of discretion as it wrecks the orderly procedure
prescribed for the settlement of claims against deceased
persons designed to protect the interests of the creditors of
the decedent. (See Dy v. Enage, 70 SCRA 96). Allowing the
private respondent in the annulment case to attach the
petitioners' properties for the benefit of her P13,000.00
claim against the estate would give her an undue
advantage over other creditors against the estate,
Moreover, the P13,000.00 claim of the respondent cannot
be settled in the case for annulment of the deed of sale,
wherein the writ of attachment is sought. What she seeks
to be secured is not the judgment in the main case but a
mere claim against the estate which is still to be considered
and adjudicated by the court.
21
A preliminary attachment is a rigorous

remedy, which exposes the debtor to
humiliation and annoyance, such it
should not be abused as to cause
unnecessary prejudice. It is, therefore,
the duty of the court, before issuing the
writ, to ensure that all the requisites of
the law have been complied with;
otherwise the judge acts in excess of his
jurisdiction and the writ so issued shall
be null and void. (Guzman v. Catolico,
65 Phil. 257, 261).
xxx xxx xxx
Considering the gravity of the allegation
that herein petitioners have removed or
disposed of their properties or are about
to do so with intent to defraud their
creditors, and further considering that
the
affidavit in support of
the
preliminary attachment merely states
such ground in general terms, without
specific allegations of circumstances to
show the reason why plaintiffs believe
that defendants are disposing of their
properties in fraud of creditors, it was
incumbent upon respondent Judge to
give notice to petitioners and to allow
them to present their position at a
hearing wherein evidence is to be
received.
Following the principle of strict compliance with all
requisites, this Court has also ruled that "when the facts,
or some of them, stated in the plaintiff's affidavit are shown
by the defendant to be untrue, the writ may be considered
as improperly or irregularly issued." (National Coconut
Corporation V. Pecson, et al., 90 Phil. 809).
The February 7, 1976 motion for issuance of a writ of
preliminary attachment and the affidavit of preliminary
attachment are misleading. First, the private respondent
states that the "defendants are indebted to plaintiff in the
amount of P13,000.00" exclusive of interests and collection
charges. Then, she avers that the "defendants are guilty of
fraud in contracting the debt or incurring the obligation
due plaintiff ".
The facts in the motion and the affidavit are deceptively
framed. The obligation which the respondent seeks to
secure by an attachment was between her and the late
William Gruenberg, Sr. What she seeks to establish as
fraudulent was the sale between the late Mr. Gruenberg
and his son. These are two entirely distinct transactions.
AGUSTIN, E.P.
One of the reasons for granting the motion for the issuance
of a writ of preliminary attachment was the court's finding
that the petitioners' failed to file an opposition thereto. It
turns out, however, that the petitioners filed a timely
opposition to the motion but it was filed in another branch
of the court where the case had earlier been assigned.
Nevertheless, despite this timely opposition, the motion for
reconsideration of the order for the issuance of a writ of
preliminary attachment, was summarily denied for lack of
merit.
We also note that the order which directed the issuance of
a writ of preliminary attachment merely recited the
grounds alleged in the private respondent's motion without
any specific details as to the supposed fraud committed by
the petitioners when they contracted the debt and the
alleged disposition or concealment by the petitioners of
their properties. The order of the trial court disregards the
rule that attachment being a harsh remedy, it must be
issued on concrete and specific grounds and not on general
averments merely quoting the words of the pertinent rules.
(Dy v. Enage, supra). The absence of specific grounds
highlights the fact that the petitioners are not indebted to
respondent Flores. It was the late William Gruenberg who
incurred the alleged indebtedness and it is his estate which
owes Flores. The validity of the claim of Flores will have to
be threshed out in the special proceedings, not in the case
for annulment of the deed of sale.
Finally, the transaction sought to be annulled in the main
case refers to a questioned sale of a house and lot. It would
have been sufficient to annotate a notice of lis pendens in
the title to that property. Assuming the trial court could
validly attach the house and lot involved in the sale, we see
no justification why the attachment should reach out to the
petitioners' interests in the Hollywood Theatre, the Palace
Theatre, and the Illusion Theatre. The petitioners also point
out that there is no showing of any attempt on their part to
conceal or to dispose of the house and lot nor of any
change in the title or condition of the property. Considering
all the foregoing, we find the writ of preliminary attachment
to have been improvidently issued.
WHEREFORE, the petition is hereby GRANTED. The
decision of the former Court of Appeals is SET ASIDE. The
writ of preliminary attachment and the notice of
garnishment issued in Civil Case No. Q-18444 are
DISSOLVED. The other related orders issued in connection
with the writ of attachment are SET ASIDE.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De
la Fuente and Alampay, JJ., concur.
22
AGUSTIN, E.P.
2. DY vs. ENAGE
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-35351 March 17, 1976
ROGELIO DY, SY JIAN AND DY CHING ENG, petitioners,
vs.
THE HONORABLE JUDGE MANUEL LOPEZ ENAGE AND
HEIRS OF EMMANUEL O. TOLENTINO, represented by
MARIA DUGOS VDA. DE TOLENTINO, respondents.
Elias Q. Tan for petitioners.
Arturo M. de Castro & Soledad Cagampang-de Castro for
respondent Maria Dugos Vda. de Tolentino.
Catalua, Buol & Yebes also for respondents.
BARREDO, J.:
Petition for "certiorari, prohibition and mandamus, with
preliminary injunction" asking the Court to declare null
and void the orders of respondent judge of July 18, 1972
and July 25, 1972 in Civil Case No. 1251 of the Court of
First Instance of Agusan del Norte and Butuan City and to
enjoin said respondent from further taking cognizance of
the case except to dismiss the same by command of this
Court, which prayer was enlarged in a supplemental
petition to include the order of attachment of September
28, 1972 and the decision of September 20, 1972, and all
implementing orders thereof, among the actuations sought
to be annulled. Later, a second supplemental petition was
filed to impugn other subsequent orders of respondent
judge to be specifically referred to later in this decision.
After issues were joined, a special motion dated February
10, 1973 was filed by private respondents praying that the
Court of First Instance of Cebu, Branch XIV, be enjoined to
dismiss Civil Case No. R-13062 therein filed by Atty. Elias
Q. Tan, counsel of herein petitioners in the abovementioned case in Agusan del Norte, against said
respondents, for damages, and that the writ of preliminary
attachment issued therein be quashed, and after comment
thereon was filed by petitioners, the Court issued the
following' resolution on May 4, 1973:
L-35351 (Rogelio Dy, et al. vs.
Hon. Manuel Lopez Enage, etc.,
et al.). Considering the
urgent
motion
of
the
respondents for the issuance of
a temporary restraining order to
enjoin the Court of First
Instance of Cebu from taking
further proceedings in Civil
Case No. R13062 during the
pendency in this Court of
respondents' motion to dismiss
said civil case or for the
23
issuance
of injunction
or
restraining order with quashal
of preliminary attachment, the
Court Resolved: (a) to issue a
TEMPORARY
RESTRAINING
ORDER effective immediately
and until further orders from
this Court, and (b) to require
both the petitioners and private
respondents within ten (10)
days from notice hereof, to file
such pleadings as may be
necessary so as to properly
implead the Court of First
Instance of Cebu City taking
cognizance of Civil Case No. R13062. (Page 562, Record.)
Voluminous representations have been filed by the parties
relative to this resolution but none of them adequately
amounts to any of the pleadings called for by the situation
and required by the resolution. And considering that the
matters treated in said motion of February 10, 1973 are
not procedurally related to the petition in this case, the
Court will not resolve the merits of said motion, without
prejudice to the private respondents filing the proper
separate petition so that issues may be regularly joined
and resolved albeit the restraining order issued by the
Court shall continue in force until the court in which
respondents might file their action acts one way or the
other in the premises, but if no such separate action is filed
by respondents within ten (10) days from notice hereof, the
said restraining order shall be deemed automatically lifted.
In other words, this decision will deal exclusively on the
original and supplemental petitions herein.
It appears that on October 10, 1968, petitioners filed with
respondent court Civil Case No. 1251 against one
Emmanuel O. Tolentino, predecessor in interest of private
respondents. Pertinently, the complaint alleged as follows:
FOR FIRST CAUSE OF ACTION
1 That plaintiffs are of legal
ages and residents of the municipality of
Cabadbaran, province of Agusan, Philippines
and the defendant is likewise of legal age and
a resident of sgd municipality and province
where he may be served with summons.
2 That after the liberation
plaintiffs spouses Dy Ching Eng and Sy Jean
resumed their general merchandise and
copra business in the municipality of
Cabadbaran, province of Agusan, continued
their aforesaid general merchandise business
until the present time and closed their copra
business in the year 1966, will their son,
plaintiff Rogelio Dy engaged in the copra
business in said municipality and province
beginning 1966 and continues it until the
present time.
3 That the defendant who is
the younger brother of plaintiff Sy Jean is
likewise engaged in the general merchandise
AGUSTIN, E.P.
and copra business in said municipality and

province and during the period from 1960 or
thereabouts until 1964 bought from plaintiffs
Dy Ching Eng and Sy Jean copra on credit
basis and the said plaintiffs Dy Ching Eng
and Sy Jian delivered on credit basis to the
defendant on July 24, 1964, 288 sacks of
copra weighing 11,679 kilos net at P48.00 per
100 kilos worth P5,605-92; on July 26, 1964,
146 sacks of copra weighing 5,749 kilos net
at P48.00 per 100 kilos, worth P2,759.52; on
July 31, 1964, 144 sacks of copra weighing
5,716 kilos net at P48.00 per 100 kilos worth
P2,858.00; on August 6, 1964, 343 sacks of
copra weighing 14,187 kilos net at P48.00 per
100 kilos worth P5,296.00; on August 14,
1964, 126 SACKS OF COPRA WEIGHING
5,296 KILOS net at P46.00 per 100 kilos
worth P5,296.00; on August 14, 1964, 75
sacks of copra weighing 2,867 kilos net at
P46.00 per 100 kilos worth P1,318.82; on
August 20, 1964, 225 sacks of copra
weighing 8,659 kilos net at P44.00 per 100
kilos worth P3,809.96; and on August 27,
1964 303 sacks of copra wishing 12,514 Idlos
net at P44-00 per 100 kilos worth P5,506.16,
as shown by corresponding Statements of
deliveries, copies of which are hereto
attached, marked as annex "A", "B", "C", "D",
"E", "P", "G", and "H" and made integral parts
hereof, valued in all at P31,104.30.
4 That the defendant made
partial payments for said plaintiffs' copra in
checks drawn against the Philippine Bank of
Communications, Cebu Branch, Cebu in the
total sum of P10,000.00, among which was
check No. T-W253 dated November 13, 1967
for P2,000.00 which check could not be
collected and cashed by plaintiffs spouse for
the reason that defendant stopped payment
of the same, n shown on the face and reverse
sides of said check No. T-445253, photostat
copies of which face and reverse sides are
hereto attached, marked as Annexes "I" and
"A" and made integral parts hereof, and also
in cash for P6,000.00 as shown by a "vale"
dated November 18, 1967 signed by plaintiff
Sy Jean, copy of which is hereto attached as
Annex "J" and made an integral part hereof,
all which partial payments amounted to
P16,000.00, thereby leaving an unpaid
balance of P15,104.30, and despite earnest
efforts exerted by plaintiffs spouses towards a
compromise and extra-judicial amicable
settlement of said defendant's indebtedness,
the same have failed and despite repeated
demands made by said plaintiffs upon the
defendant to pay said unpaid balance, the
latter failed and refused and still continues to
do so without valid and justifiable cause
therefore, thereby committing breach of
contract in evident bad faith and fraudulently
for which defendant should be held liable to
said plaintiffs for actual damages in the
amount of P3,3562.03 until the present time
and for moral damages in the amount of
P5,000.00
24
ACTION
FOR
SECOND
CAUSE
OF
Plaintiffs respectfully allege:

1 That the plaintiffs hereby
reproduce and incorporate as part hereof the
averments contained in paragraphs 1, 2, 3,
and 4 under the first cause of action hereof.
2 That in 1966 to 1967
defendant used to buy from plaintiff Rogelio
Dy copra at most at P68.00 per kilo, but
considering that the current market price of
copra at that time was much higher than the
price per kilo paid by the defendant for said
plaintiffs copra, the said plaintiff Rogelio Dy
stopped in 1967 to sell his copra to the
defendant.
3 That by reason of plaintiff
Rogelio Dy's refused to continue selling his
copra to the defendant, the defendant on or
about November 22, 1967 after plaintiff Sy
Jean had received from him the amount of
P6,000.00 shown in the receipt, Annex 'J'
sent for plaintiffs Sy Jean and Rogelio Dy to
go his store at Cabadbaran, Agusan; that
while plaintiff Sy Jian was in the said store
ahead of Rogelio Dy, the defendant scolded
her on account of their failure to sell copra to
him; that when Sy Jean explained that she
could not interfere and control her son
Rogelio
Dy
in
connection
with
the
management of his business, the defendant
threated to cause bodily harm to her and sent
for plaintiff Rogelio Dy to go to his store; that
once the said plaintiff Rogelio Dy was in
defendant's store and saw his mother being
treated by the defendant, the defendant
began to scold plaintiff Rogelio Dy for not
having continued to sell copra to him,
threatened to kill him and under threats and
intimidation with a pistol compelled without
any lawful authority the said plaintiff Rogelio
Dy to sign a blank form on said date, the
printed recitals of which blank form tend to
show that plaintiff Rogelio Dy supposedly
received from the defendant on the date
stated therein the amount of P16,000.00 in
trust for the purpose of buying copra with the
supposed obligation of delivering to him the
copra and or of returning the said amount,
when in truth and in fact, the said plaintiff
Rogelio Dy never at all prior to the date
mentioned in said defendants printed form
received from the defendant the sum of
P16,000.00 nor did said plaintiff Rogelio Dy
ever act as supposed purchasing agent for
copra for the defendant; that by reason of the
threats and intimidation made by the
defendant to kill not only Sy Jean but also
him, the plaintiff Rogelio Dy by reason of fear
was compelled to affix against his will his
signature on the said printed form.
AGUSTIN, E.P.
4 That the supposed contract

of agency prepared by the defendant without
the intervention, consent or authority of any
one of herein plaintiffs, mentioned the sum of
P16,000.00 which was the partial payments
made by the defendant for the said deliveries
of copra belonging to the plaintiffs spouses;
that, as a matter of fact and in truth, after
the defendant had succeeded through threats
and intimidation to make plaintiff Rogelio Dy
sign the said supposed contract of agency,
the defendant delivered to Sy Jean the receipt
for P6,000.00 annex X hereof.
5 That the said supposes
contract of agency is null and void, illegal and
invalid, is fraudulent and constitutes a
falcification of a private document.
6 That by reason of the
unlawful,
malicious,
wrongful,
and
fraudulent acts of the defendant, the
plaintiffs have suffered actual damages in the
amount of P16,000.00 and moral damages for
mental anguish, serious anxiety, social
humiliation and wounded feelings in the
amount that the court may fix.
7 That despite earnest efforts
exerted by the plaintiffs towards a
compromise, the same have failed and
despite repeated demands made by plaintiff
Rogelio Dy to cancel the supposed contract of
agency and to desist from enforcing it in any
manner, the defendant refused to do so and
continues to threaten to to prosecute plaintiff
Rogelio Dy for supposed estafa for the
purpose of harrassing, oppressing and
humiliating the said plaintiff Rogelio Dy in
particular and his parents in general. (Pages
137-141, Record.)
In his answer, the defendant made specific denials and
alleged affirmative defenses and in addition interposed
counterclaims as follows:
COMES NOW the defendant in the above-entitled
case, thru counsel, and in answer to the
complaint, to this Honorable Court most
respectfully alleges:
1. That defendant admits the allegation contained
in paragraph 1 for the fust cause of action in the
complaint.
2. That defendant has no infomation as to the
truth of the allegations contained in paragraph 2
of the complaint (first cause of action). But
whether plaintiffs had license to engage in the
copra business or not the fact is that plaintiffs
were acting only as copra purchasing agents for
the defendant.
3. That defendant admits that he is engaged in
the general merchandise and copra business in
25
the municipality of Cabadbaran and province of

Agusan; but specifically denies the information
that he is a younger brother of plaintiff Sy Jean;
the truth of the matter is Sy Jean was an adopted
daughter of defendant's father and coincidentally
when they happened to reside together in Agusan
they considered themselves as brother and sister,
and 0 they were known as such in the community
of Agusan. Defendant further denies that he had
business relation on credit basis with plaintiffs'
son. The truth being that all the plaintiffs were
merely copra purchasing agents of the defendant.
And the defendant has no knowledge or
information to form a belief as to the truth of the
matter alleged in the remaining Portion of
paragraph 3 of the fust cause of action of the
complaint, and, therefore denies the same, and
further denies under oath the selfserving annexes
attached to the complaint and marked as annexes
"A", "B", "C", "D", "E", "F", "G", and "H" which
apparently
are
tally
saheets
for
being
manufactured documents and inadmissible
evidence.
4. That the allegation contained in paragraph 4
are hereby denied. The truth of the matter is
hereinafter alleged in the special and affirmative
defenses.
5. That the allegations contained in paragraph 5
are hereby denied. The truth of the matter is
defenses, and that further defendant is not
obligated in anyway to pay any amount of actual
damages, much less is defendant liable for moral
damages.
6. That Paragraph 1 of the second cause of action,
being a mere reproduction of the previous
allegations, is also hereby denied and the
allegations contained in the previous paragraph i
of this answer are hereby reproduced and replead.
of the sand cause of action are hereby denied. The
truth of the matter being that in no time as far as
defendants
recollection
is
concerned
the
exagerated price of P68 per kilo of copra has ever
been obtaining in Agusan or elsewhere. And
further it is denied that defendant has ever
purchased copra from the plaintiff Rogelio Dy. The
truth being that plaintiff Rogelio Dy has been a
copra purchasing agent for the defendant.
8. That the allegations contained in paragraphs 3
and 4 of the second cause of action of the
complaint are hereby denied. It is specifically
denied that plaintiffs Sy Jean and Rogelio Dy were
ever threatened of bodily harm much less
threatening Rogelio Dy to be killed. It is further
specifically denied that Rogelio Dy was compelled
to sign a blank form. The truth of the matter
further is hereinafter alleged in the special and
affirmative defeses With respect to the receipt for
P6,000.00 marked in the complaint at Annex "J"
is admitted that it was returned to Sy Jean
AGUSTIN, E.P.
together with another receipt for P10,000.00 after

the receipt for P16,000.00 was signed by plaintiff
Rogelio Dy who appeared to have in his ion the
P16,000.00 and who was the licensed copra
dealer. And the truth of the matter further is
defenses.
am conclusions of law. But it is denied that the
contract agency is null and void, illegal and
invalid, much less, fraudulent and constitutes a
falsification of private document. The trust of the
matter is that said contract of agency is legal and
valid, not fraudulent nor falsification, it having
been executed in due course and for value.
of the second cause of action are again
conclusions of fact and consclusions of law. But if
plaintiffs have suffered actual damages in the
amount of P16,000.00 and undetermined moral
damages plaintiffs alone are responsible therefor
and defendant is not liable of the same.
of the second cause of action are hereby denied.
The truth of the matter is that it was the
defendant who exerted earnest efforts to secure
payment of plaintiffs' obligations, but despite such
efforts exerted by defendant plaintiffs have
remained adamant and entirely disregarded the
repeated request of the defendant, and due to this
refusal of the plaintiff Rogelio Dy to pay his
obligation to the defendant the latter was
compelled to seek the intervention of the Office of
the Provincial Fiscal in order to legally enforce the
agency contract sometime in August 18, 1968.
But until now no payment was effected by said
plaintiff. And the truth of the matter further is
that in sinking the intervention of the Provincial
Fiscal of Agusan it was not the purpose of
defendant to harass, oppress and humiliate
plaintiff Rogelio Dy but merely in the legitimate
exercise of legal rights of the defendant.
12. That as to the allegations common to first and
sand causes of action, particularly paragraph 7
and 8 affecting petition for injunction, said
allegations are untenable. because merits of the
criminal action involved are to be determined by
proper authorities vested with powers and
jurisdiction to act on the matter. If criminal action
has merits and at least PRIMA FACIE evidence
shown, the exercise of such power is vested with
the Provincial Fiscal in this particular case; and
with respect to the civil action involved the same
is hereinafter incorporated in a counterclaim.
Both criminal and civil action cannot be prevented
by injunction.
SPECIAL AND AFFIRMATIVEE DEFENSES
13. That prior to August 26, 1964, Mr.

and Mrs. Dy Ching Eng of Cabadbaran,
Agusan had been copra purchasing
agents of the defendant, by virtue of
which agency they were accorded by the
defendant cash advances.
14. That the liquidation of cash advances
and value of copra delivered were
effected at the end of every month.
15. That on August 26, 1964 a
liquidation of cash advances and value of
copra delivered was made, and plaintiffs
spouses Dy Ching Eng and Sy Jean had
an outstanding balance payable to the
defendant in the amount of P10,386.69.
16. That sometime on September 1,
1964 a big fire occured in Cabadbaran,
Agusan in which the spouses Dy Ching
Eng and Sy Jean suffered heavy losses.
17. That due to the losses suffered by
said spouses Dy Ching Eng and Sy Jean
both spouses were not required to
liquidate immediately their account of
P10,368.69, and on the contrary they
were
further
given
Pl,000.00
on
September 3, 1964 covered by mere
vales signed in chinese characters by Sy
Jean, and in order to further help them
rehabilitate themselves from the fire
losses both spouses were not pressed for
payment of their total outstanding
account in the sum of P12,368.69
leaving the matter for future liquidation
at their own request.
18. That sometime in 1966 plaintiff Dy
Ching Eng transferred his copra
business to his son Rogelio Dy who
eventually took over the business of his
parents from that time on until now,
although plaintiffs Dy Ching Eng and Sy
Jean continued to help their son Rogelio
Dy in running the copra business.
19. That on two (2) occasions,
particularly November 13 and 17, 967
plaintiff Sy Jean came to defendant's
store and requested for advance amount
of
P10,000.00,
and
P6,000.00
respectively. She specifically requested
and so the defendant accommodated
that the amounts be covered by checks
of P2,000.00 each to facilitate her and
her son Rogelio Dy's purchases of copra
as agent of defendant. The November 13
checks were five (5) in number for the
total amount of P10,000.00 and the
November 17 checks were three (3) in
number for a total of P6,000,00.
defendant respectfully alleges:
26
AGUSTIN, E.P.
20. That the above eight (8) checks were

covered by two (2) provincial receipts or
values, one dated November 13, 1967
and the other dated November 18, 1967.
The latter value is now Annex "J" of the
complaint.
21. That late in the afternoon of
November 18, 1967 plaintiff Rogelio Dy
came to the store and after confirming
the values of plaintiff Sy Jean he
prepared in his own handwriting a cash
advance receipt which is partly printed
and partly handwritten receipt for
P16,000.00. This is a requisite which
had to be effected in view of the fat, that
it was plaintiff Rogelio Dy who was and
still is the licensed copra dealer
22. That after preparing the partly
printed and partly handwritten cash
advance receipt for P16,000.00, and after
the same was handed over by Rogelio Dy
to the defendant and in turn defendant
returned to Sy Jian thru Rogelio Dy two
previous values signed by Sy Jean.
23. That during that period of time
between November 13 up to and
including November 18, 1967 defendant
noticed that there were accumulations of
the stock of copra in the bodega of the
plaintiffs, which bodega incidentally is
located just across the street where
defendant's store is situated.
24. That on the 19th of November 1967
defendant came to Cebu and had only
returned to Cabadbaran on the 22nd day
of November 1967.
25. That upon his return to Cabadbaran,
Agusan he noticed that the bodega of
plaintiffs was already empty. So, he went
to confront Plaintiff Rogelio Dy and his
mother Sy Jean why was it that their
bodega was empty. They replied to the
defendant that the copra was sold to a
purchaser in Surigao because according
to them said purchaser paid a better
price for the copra.
already cashed and stopping paying was

only effected on the other four (4)
checks.
27. That in view of the fact that no
payment of the amount was made, much
less a delivery of copra effected . despite
the lapse of considerable length of time
and notwithstanding repeated demands,
defendant was compelled to seek the
intervention of the Provincial Fiscal, but
still no payment was effected until now.
28. That the filing of the present case is
a plain harassment and a clear
retaliation for what defendant has done
in seeking the intervention of the
Provincial Fiscal.
As
FIRST COUNTER-CLAIM
Defendant respectfully alleges:
29. That for the sake of brevity defendant
hereby reproduces and repleads all the
allegations contained in the previous
paragraphs of this answer and special
and affirmative defense.
30. That defendant has ascertained that
out of the eight (8) checks at the rate of
P2,000.00 each, four (4) checks were
already cashed, particularly cheeks Nos.
T-445251, T-445255 and T-445269 or a
total amount of P8,000.00, and the other
four (4) cheeks totalling P8,000.00 were
not effectively cashed because payment
of the same was accordingly stopped.
31. That the cash advance receipt of
P16,000.00 is therefore reduced to only
P8,000.00 if and when the four (4) other
checks shall be returned by the plaintiffs
to the defendant.
As
SECOND COUNTER-CLAIM
26. That defendant told plaintiffs Rogelio

Dy and Sy Jean that at least they should
have advised the defendant because
defendant was also willing to pay an
increased price. But both plaintiffs
answered that the matter is already
closed and there was nothing they could
do about it. So, defendant asked for the
return of his money. But plaintiffs could
not readily do it. So, defendant wired the
Philippine Bank of Communications of
Cebu City to stop payment of the eight
(8)
checks
above-mentioned,
but
unfortunately four (4) checks were
27

and affirmative defenses, including the
allegations contained in the first
counterclaim.
AGUSTIN, E.P.
33. That plaintiffs are indebted to the

defendant in the total sum of P12,368.69
as
acknowledged
by
Sy
Jean,
particularly in her cash advance of
August 26, 1964 and values of
September 2 and September 3, 1964
respectively, which account totalling
P12,868.69
remains
unpaid
and
outstanding until now, despite repeated
demands subsequently made by the
defendant for its payment.
As
THIRD COUNTER-CLAIM
and affirmative defenses including the
allegations contained in the first and
second counterclaims.
35. That defendant is a businessman of
good standing in the Municipality of
Cabadbaran and Province of Agusan
with
quite
a
considerable
gross
negotiations every year.
proceedings
related
thereto
must
consequently be as they are hereby set
aside.
On November 14, 1971, the defendant Tolentino died. This
was before he had completed the formal presentation of his
evidence in support of his counterclaims. Whereupon, Atty.
Vicentey Jayme for the respondents, after their proper
Vicente Jayme for the respondents, after their proper
substitution as heris of defendant Tolentino, filed a socalled "Jurisdictional Motion for Dismissal of Plaintiffs'
Complaint" on December 13, 1971, asking however that
notwithstanding the dismissal of the complaint prayed for,
the court proceed with the trial and final disposition of the
cournterclaims. The motin was based on the ground that
inasmuch as the plaintiff's case was a claimfor money,
under Section 21 of Rule 3, it should be dismissed as an
action and filed as a claim inthe special proceedings for the
settlement of the estate of the deceased defendant.
Petitioners opposed said motion contending that the
second cause of action was for damages and that their
defense to the counterclaims of the defendant was in the
complaint and citing the case of Javier vs. Araneta, L-4369,
August 31, 1953, in support of their opposition. On
January 5, 1972, respondent judge denied the motion to
dismiss thus:
"For not being well-founded, the motion filed by Atty.
Vicente Jayme, counsel for the defendants, dated Decembr
13, 1971 based onthe grounds threin stated (See: pp. 470471, Recods) is hreby ordered DENIED.
SO ORDERED." (Page 9, Record.)
36. That defendant also enjoys good

standing
in
the
community
of
Cabadbaran,
Agusan
having
been
President since 1966 and he is still
President of the Cabadbaran Lions Club
until now.
37. That defendant has been maligned
by the plaintiffs by 'bringing this clearly
unfounded civil action against him in
gross and bad faith, and as a
consequence defendant suffered actual
losses in his business and also suffered
moral damages, and in view of the fact
that plaintiffs have acted in gross bad
faith and evident malice in filing the
complaint they should be made to pay
actual, moral and exemplary damages in
such amount as to this Honorable court
may determine in the exercise of its
sound discretion.
38. That plaintiffs, by maliciously filing
the instant complaint against the
defendant, have compelled the latter, for
the protection of his interest, to incur
litigation expenses, and engage the
services of undersigned counsel with
whom he has agrhe time the orders of
attachment complained of were issued,
respondent court acted with grave abuse
of discretion, and the writs issued
thereunder
and
all
subsequent
28
Threeafter, the court porceeded with the trial and on May 4

1972 ordered the admission of the documentary evidence
of defendants listed inthe order of even date, and upon
manifestationof plaintiffs that they have rebuttal evidence
to present, set the case for hearing for the purpose of
receiving the same, but instead of agreeing to thedats
porposed by them: July 11, 12 and 13, 1972, the court, in
its order of May 22, 1972, set the reception of said evidence
on July 3, 1972, only to change this later or on June 28,
1972, to July 5, 1972 for fear that July 3, 1972 might be
declared a public holiday, and still later to July 25, 1972
might be declared a public holiday, and still later to July
25, 1972 upon motion of plaintiffs' counsel.
In the meanwhile, on June 27, 1972, plaintiffs filed the
following motion, which they set for hearing on July 3,
1972, albeit no hearing appears to have beenheld onsaid
date:
"COME NOW the plaintiffs, thorugh counsels, and to this
Honorable Court respectully allege:
1. That the reception of plaintiffs' rebuttal evidence inthe
above-entitled case has been set for July 3rd, 1972, at 8:30
A.M.
2. That as defendant Emmanuel O. Tolentino died before
completion of plaintiffs' cross-examination and before
finality of judgment on plaintiffs' respective money claims
against him, and as the substituted defendants have filed
jurisdictional motion for dismissal of this case, the ;laintiffs
AGUSTIN, E.P.
hreby withdreaw their opposition to said jurisdictional

motion by reason of the fact that, as pointed out therein,
this Honorable Court is divested of jurisdiction to
continuetaking cognizance of plaintiffs' money claim and
said money claim should be filed with the proper probate
court.
3. That in the interest of justice and in order not to render
judgment on said money claim null and void for lack of
jurisdiction, the plaintiffs desire to present completely
competent, relevant and material evidence before the
proper probate court to substantiate their aforesaid money
claims and for this reason they are constrained to move
this Honorable Court to dismiss provisionally this case to
move this Honorable Court to dismiss provisionally this
case without prejudice of refiling same with the proper
probate court and of reproducing therein the evidence and
presenting rebuttal evidence according as the nature of
defendants' evidence may demand.
4. That in view of the foregoing considerations, the
plaintiffs hereby manifest that they no longer will present
rebuttal evidence resrving same to be adduced instead in
the proper probate court.
WHEREFORE, this Honorable Court is most respectfully
prayed to dismiss provisionally the above-entitled case
without prejudice of refiing same with the proper probate
court and of presenting and reproducing therein plaintiffs'
evidence for final determination and decision by said
probate court."
On Juy 13, 1972, defendants filed the following:
DEFENDANTS
COUNTER-MANIDFESTATION
AND
OPPOSITION TO THE MOTION DATED JUNE 27, 1972
COME the defendants in the above-entitled case, thru the

undersigned counsel, and to this Honorable Court most
respectfully manifest and submit an opposition to the
dismissal of defendants' counterclaim on the following
grounds:
1. That copy of plaintiffs' Manifestation and Motion dated
June 27, 1972 appears to have been mailed from Butuan
City on June 28, 1972, and received by us after July 3,
1972.
2. That as far back as December 13, 1971 we have
submitted to this Honorable Court a pleading entitled
"JURISDICTIONAL
MOTION
FOR
DISMISSAL
OF
PLAINTIFFS' COMPLAINT (PRIVILEGED AND URGENT)'.
3. What our grounds therein alleged are hereto replead and
reproduced IN TOTO.
4. That said motionhas beenopposed by the plaintiffs under
a pleaing entitled 'OPPOSITION TO JURISDICTIONAL
MOTION FOR DISMISSAL OF PLAINTIFFS' COMPLAINT'
dated December 29, 1971.
29
5. That an order dated January 5, 1972 was issued by this

Honorable Court denying our motion.
6. That in the meantime and in due course continuation of
the trial was held and the formal offer in evidence of all the
exhibits of the defendants was effected under date of
February 19, 1972, which exhibits were admited by the
Court inits order of May 4, 1972.
7. That as it is the case of the defendants is completed with
their counterclaim duly substantiated.
8. That the counterclaim is in itself an independent action,
not subject to suspension or dismissal because it survives
the deceased Don Emmanuel O. Tolentino.
9. That as a matter of fact is is now deemed submitted to
the decision of the Honorable Court without any strings
attached to said counterclaim.
WHEREFORE, in reiteration, this Honorable Court is most
respectfully prayed to grant the motion to dismiss plaintiffs'
complaint, and to declare the case of the defendants as far
as their counterclaim is concerned, submitted for the
decisionof this Honorable Court." (Pp. 12-13, Recod.)
And on July 18, 1972, the court issued the following order:
"For lack of merit, the manifestation and motion filed by
Atty. Cipriano C. Alvizo, Sr. for the plaintiffs (See: pp. 543544, Records), and the counter-manifestation and
opposition filed by Atty. Vicente Jayme for the defendants
(See: pp. 547-548 Records) are hereby ordered DENIED.
ASprayed of (for) by Atty. Alvizo, Sr., set this case for the
reception of the rebuttal and surrebuttal evidence on July
25, 1972 from 8:30 A.M. to P.M. with due notice to all
counsel." (Page 14, Record.)
A motion dated July 23, 1972 for reconsideration of thir
order was filed by plaintiffs but on July 25, 1972, what
happened is narrated in the order of the court of said date
as follows:
"When this case was called for the reception of plaintiffs'
rebuttal evidence for the second time at exactly 11:23 A.M.
today, Atty. Cipriano C. Alvizo, Sr., counsel for the
plaintiffs, together with all the plaintiffs themeslves, failed
to appear in court despite due notice to them in open court
the first time this case was called at 8:30 A.M., and in spite
of the two personal notices given to said Atty. Alvizo, Sr.,
who was by then withinthe sala of Branch 1 of this court
sitting, whre no sessions were yet had, first by Court
Proces Server Rodrigo T. Macion and second, by CIC
Raymundo C. Morgadez minutes before the second call as
above said.
The reception of plantiffs reguttal evidence was previously
set by the court, upon previous prayer of plaintiffs, thru
counsel, in their Manifestaion and Motion dated May 15,
1972 (See: p. 537, Records), on July 3, 1972 in anorder
dated May 22, 1972 (See: p. 541, Records). Later, plaintiffs,
AGUSTIN, E.P.
thru counsel, prayed the court again in their Urgent Ex

Parte Motion dated June 30, 1972
'to reset for July 25, 1972 the hearing of this case.' (See: p.
545, Records.)
Again plaintiffs' above said motion was granted by the
court as prayed for by them in an Order dated July 18,
1972 resetting the reception of plaintiffs' rebuttal evidence
today, July 25, 1972 from 8:30 A.M. to 7:00 P.M., with due
notice to said Atty. Cipriano C. Alvizo, Sr. by personal
service on July 22, 1972 (See: p. 550, Records).
First call of the case was had Atty. Alvizo, Sr. appeared and
presented plaintiffs' Urgent Motion for Reconsideratio dated
July 23, 1972 but only filed today 25 minutes before the
first call. The court intimated to said Atty. Alvizo, Sr. that it
could not entertain the said motion on grounds which the
court would give in an Order to be issued later and insisted
on plaintiffs' presentationof their promised rebuttal
evidence. The court, however, in fairness to plaintifs who
were absent in court, gave said Atty. Alvizo, Sr. until 11:00
A.M. to present his rebuttal witnesses. The the second call
came at exactly 11:23 A.M. as above said and what
happened was what was already narrated by the court at
the opening of this Order.
The incident of contempt shall be continued upon

appropriate motion of the interested parties. With respect
to the matter of alleged irregular and illegal attachment
secured by Atty. Elias Q. Tan from the Court of First
Instance of Cebu, the Court rules that it should be made
the subject of a separate action, albeit the restraining order
issued by this Court on May 4, 1973 is hereby maintained
until such appropriate action is filed, in which event, the
court taking cognizance thereof may act as it may deem
proper in regard to said restraining order which was issued
only to maintain the status quo, for the purpose of avoiding
that the controversy between the parties should be more
complicated in the instant proceeding.
Costs against respondents.
Antonio, Aquino, Concepcion, Jr., and Martin, JJ, concur.
Note: Mr Justice Enrique M. Fernando is on leave.
Mr. Justice Ruperto G. Martin was designated to sit in the
Second Division.
By reason of all the foregoing, it is the sense of the court

that plaintiffs have elected to waive their right to present
rebuttal evidence, prompting the cort to consider, as it
hereby HOLDS that this case is now considered
reglementarily submitted fo rdecisonon the merits. There
being no rebuttal evidence to sur-rebt, a Atty. Lydio J.
Cataluna, counsel for the defendants, presented no
objection to the foregoing.
Plaintiffs' Urgent Motion for Reconsideration filed only
today, 25, minutes before 8:30 A.M. (See: p. 553, Recods)
when this case was caled for the reception of their
promised rebuttall evidence as prayed for them thru said
Atty. Alvizo, Sr. as above said (See: pp. 553-555, Records),
is hreby ordered, for bieng unreglementary and dilatory in
nature andtiming, DENIED, pursuant to Section 4, Rule 15
of the Revised Rules of Court." (Pp. 18-20, Record.)
On July 29, 1972, plaintiffs
PREMISES CONSIDERED, judgment is hereby rendered
granting the instant petition. The trial court's decision of
September 20, 1972 as well as its orders of July 18 and 25,
1972, together with all its orders of preliminary attachment
against the properties of the petitioners are hereby set
aside and rendered without force and effect. Respondent
court is enjoined to dismiss the subject case before it (Civil
Case No. 1251) in so far as petitioners' first cause of action
is concerned, without prejudice to its being filed as a
money claim in special proceedings for the settlement of
the estate of the deceased Emmanuel O. Tolentino.
Respondent court is further ordered to proceed with the
trial of respondents' counter-claims by allowing the
petitioners to present their evidence in defense thereto,
after which another decision should be rendered as the
facts and the law may warrant.
30
AGUSTIN, E.P.
Attachment to Acquire Jurisdiction

Over the RES
1. MABANAG vs. GALLERMORE

FIRST DIVISION
[G.R. No. L-825. July 20, 1948.]
ROMAN MABANAG, Plaintiff-Appellant, v. JOSEPH M.
GALLEMORE, Defendant-Appellee.
Santiago Catane for Appellant.
No appearance for Appellee.
SYLLABUS
COURTS; JURISDICTION; NON-RESIDENT DEFENDANT;
EFFECT OF ATTACHMENT OR GARNISHMENT.
Attachment or garnishment of property of a non-resident
defendant located in the Philippines confers jurisdiction on
the court in an otherwise personal action. In other words,
though no jurisdiction is obtained over the debtors person,
the case may proceed to judgment if there is property in
the custody of the court that can be applied to its
satisfaction.
DECISION
TUASON, J.:
This case, here on appeal from an order of dismissal by the
Court of First Instance of Occidental Misamis, raises the
question of the courts jurisdiction. More specifically, the
question is whether the action is in personam or one in
rem. The trial court opined that it is the first and that it
"has no authority nor jurisdiction to render judgment
against the herein defendant, Joseph M. Gallemore for
being a non-resident."
The purpose of the action is to recover P735.18, an amount
said to have been paid by the plaintiff to the defendant for
two parcels of land whose sale was afterward annulled. The
defendant is said to be residing in Los Angeles, California,
U. S. A. He has no property in the Philippines except an
alleged debt owing him by a resident of the municipality of
Occidental Misamis. This debt, upon petition of the
plaintiff, after the filing of the complaint and before the suit
was dismissed, was attached to the extent of plaintiffs
claim for the payment of which the action was brought. But
the attachment was dissolved in the same order dismissing
the case.
It was Atty. Valeriano S. Kaamio who as amicus curiae
filed the motion to dismiss and to set aside the attachment.
There is no appearance before this Court to oppose the
appeal.
Section 2, Rule 5, of the Rules of Court provides:
"If any of the defendants does not reside and is not found
in the Philippines, and the action affects the personal
31
status of the plaintiff, or any property of the defendant

located in the Philippines, the action may be commenced
and tried in the province where the plaintiff resides or the
property, or any portion thereof, is situated or found."
virtua1aw
library
The Philippine leading cases in which this Rule, or its
counterpart in the former Code of Civil Procedure, sections
377 and 395, were cited and applied, are Banco EspaolFilipino v. Palanca, 37 Phil. 921, and Slade Perkins v.
Dizon, 40 Off. Gaz., [3d Suppl. ], No. 7, p. 216. The gist of
this Courts ruling in these cases, in so far as it is relevant
to the present issues, is given in I Morans Comments on
the Rules of Court, 2d Ed., 105:jgc:chanrobles.com.ph
"As a general rule, when the defendant is not residing and
is not found in the Philippines, the Philippine courts
cannot try any case against him because of the
impossibility of acquiring jurisdiction over his person,
unless he voluntarily appears in court. But, when the
action affects the personal status of the plaintiff residing in
the Philippines, or is intended to seize or dispose of any
property, real or personal, of the defendant, located in the
Philippines, it may be validly tried by the Philippine courts,
for then, they have jurisdiction over the res, i. e., the
personal status of the plaintiff or the property of the
defendant, and their jurisdiction over the person of the
non-resident defendant is not essential. Venue in such
cases may be laid in the province where the plaintiff whose
personal status is in question resides, or where the
property of the defendant or a part thereof involved in the
litigation is located."
virtua1aw
library
Literally this Court said:
"Jurisdiction over the property which is the subject of
litigation may result either from a seizure of the property
under legal process, whereby it is brought into the actual
custody of the law, or it may result from the institution of
legal proceedings wherein, under special provisions of law,
the power of the court over the property is recognized and
made effective. In the latter case the property, though at all
times within the potential power of the court, may never be
taken into actual custody at all. An illustration of the
jurisdiction acquired by actual seizure is found in
attachment proceedings, where the property is seized at the
beginning of the action, or some subsequent stage of its
progress, and held to abide the final event of the litigation.
An illustration of what we term potential jurisdiction over
the res, is found in the proceeding to register the title of
land under our system for the registration of land. Here the
court, without taking actual physical control over the
property assumes, at the instance of some person claiming
to be owner, to exercise a jurisdiction in rem over the
property and to adjudicate the title in favor of the petitioner
against all the world." (Banco Espaol-Filipino v. Palanca,
supra, 927-928.)
"In an ordinary attachment proceeding, if the defendant is
not personally served, the preliminary seizure is to be
considered necessary in order to confer jurisdiction upon
the court. In this case the lien on the property is acquired
by the seizure; and the purpose of the proceedings is to
subject the property to that lien. If a lien already exists,
whether created by mortgage, contract, or statute, the
preliminary seizure is not necessary; and the court
proceeds to enforce such lien in the manner provided by
law precisely as though the property had been seized upon
attachment. (Roller v. Holly, 176 U. S., 398, 405; 44 Law.
ed., 520.) It results that the mere circumstance that in an
AGUSTIN, E.P.
attachment the property may be seized at the inception of

the proceedings, while in the foreclosure suit it is not taken
into legal custody until the time comes for the sale, does
not materially affect the fundamental principle involved in
both cases, which is that the court is here exercising a
jurisdiction over the property in a proceeding directed
essentially in rem. (Id., 929-930.)
"When, however, the action relates to property located in
the Philippines, the Philippine courts may validly try the
case, upon the principle that a State, through its
tribunals, may subject property situated within its limits
owned by non-residents to the payment of the demand of
its own citizens against them; and the exercise of this
jurisdiction in no respect infringes upon the sovereignty of
the State where the owners are domiciled. Every State owes
protection to its own citizens; and, when non-residents deal
with them, it is a legitimate and just exercise of authority
to hold and appropriate any property owned by such nonresidents to satisfy the claims of its citizens. It is in virtue
of the States jurisdiction over the property of the nonresident situated within its limits that its tribunals can
inquire into the non-residents obligations to its own
citizens, and the inquiry can then be carried only to the
extent necessary to control the disposition of the property.
If the non-resident has no property in the State, there is
nothing upon which the tribunals can adjudicate." (Slade
Perkins v. Dizon, 40 Off. Gaz. [3d Supplement], No. 7, p.
216.)
acquire jurisdiction of the defendants person, and he has

not appeared and answered or otherwise submitted himself
to the jurisdiction of the court, the court is without
jurisdiction to render judgment until there has been a
lawful seizure of property owned by him within the
jurisdiction of the court." (2 R. C. L., 800-804.)
Tested by the foregoing decisions and authorities, the
Court has acquired jurisdiction of the case at bar by virtue
of the attachment of the defendants credit. Those
authorities and decisions, so plain and comprehensive as
to make any discussion unnecessary, are in agreement that
satisfaction.
It is our judgment that the court below erred in dismissing
the case and dissolving the attachment; and it is ordered
that, upon petition of the plaintiff, it issue a new writ of
attachment and then proceed to trial. The costs of this
appeal will be charged to defendant and appellee.
Paras, Actg. C.J., Feria, Pablo, Perfecto, Bengzon, Briones,
and Padilla, JJ., concur.
A fuller statement of the principle whereunder attachment

or garnishment of property of a non-resident defendant
confers jurisdiction on the court in an otherwise personal
action, appears in two well known and authoritative
works:chanrob1es
virtual
1aw
library
The main action in an attachment or garnishment suit is in
rem until jurisdiction of the defendant is secured.
Thereafter, it is in personam and also in rem, unless
jurisdiction of the res is lost as by dissolution of the
attachment. If jurisdiction of the defendant is acquired but
jurisdiction of the res is lost, it is then purely in personam .
. . a proceeding against property without jurisdiction of the
person of the defendant is in substance a proceeding in
rem; and where there is jurisdiction of the defendant, but
the proceeding against the property continues, that
proceeding is none the less necessarily in rem, although in
form there is but a single proceeding. (4 Am. Jur., 556557.)
As the remedy is administered in some states, the theory of
an attachment, whether it is by process against or to
subject the property or effects of a resident or non-resident
of the state, is that it partakes essentially of the nature and
character of a proceeding in personam and not of a
proceeding in rem. And if the defendant appears the action
proceeds in accordance with the practice governing
proceedings in personam. But where the defendant fails to
appear in the action, the proceeding is to be considered as
one in the nature of a proceeding in rem. And where the
court acts directly on the property, the title thereof being
charged by the court without the intervention of the party,
the proceeding unquestionably is one in rem in the fullest
meaning of the term.
"In attachment proceedings against a non-resident
defendant where personal service on him is lacking, it is
elementary that the court must obtain jurisdiction of the
property of the defendant. If no steps have been taken to
32
AGUSTIN, E.P.
Stages in the Issuance of the Writ
1. CUARTERO vs. CA
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 102448 August 5, 1992
RICARDO CUARTERO, petitioner,
vs.
COURT OF APPEALS, ROBERTO EVANGELISTA and
FELICIA EVANGELISTA, respondents.
Abesamis, Medialdea & Abesamis for petitioner.
Eufemio Law Offices for private respondent.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari seeking to annul
the decision of the Court of Appeals promulgated on June
27, 1991 as well as the subsequent resolution dated
October 22, 1991 denying the motion for reconsideration in
CA-G.R. SP No. 23199 entitled "Spouses Roberto and
Felicia Evangelista v. Honorable Cezar C. Peralejo,
Presiding Judge Regional Trial Court of Quezon City,
Branch 98, and Ricardo Cuartero," which nullified the
orders of the trial court dated August 24, 1990 and
October 4, 1990 and cancelled the writ of preliminary
attachment issued on September 19, 1990.
Following are the series of events giving rise to the present
controversy.
On August 20, 1990, petitioner Ricardo Cuartero filed a
complaint before the Regional Trial Court of Quezon City
against the private respondents, Evangelista spouses, for a
sum of money plus damages with a prayer for the issuance
of a writ of preliminary attachment. The complaint was
docketed as Civil Case No. Q-90-6471.
On August 24, 1990, the lower court issued an order
granting ex-parte the petitioner's prayer for the issuance of
a writ of preliminary attachment.
On September 19, 1990, the writ of preliminary attachment
was issued pursuant to the trial court's order dated August
24, 1990. On the same day, the summons for the spouses
Evangelista was likewise prepared.
The following day, that is, on September 20, 1990, a copy
of the writ of preliminary attachment, the order dated
August 24, 1990, the summons and the complaint were all
simultaneously served upon the private respondents at
their residence. Immediately thereafter, Deputy Sheriff
Ernesto L. Sula levied, attached and pulled out the
properties in compliance with the court's directive to attach
33
all the properties of private respondents not exempt from

execution, or so much thereof as may be sufficient to
satisfy the petitioner's principal claim in the amount of
P2,171,794.91.
Subsequently, the spouses Evangelista filed motion to set
aside the order dated August 24, 1990 and discharge the
writ of preliminary attachment for having been irregularly
and improperly issued. On October 4, 1990, the lower
court denied the motion for lack of merit.
Private respondents, then, filed a special civil action for
certiorari with the Court of Appeals questioning the orders
of the lower court dated August 24, 1990 and October 4,
1990 with a prayer for a restraining order or writ of
preliminary injunction to enjoin the judge from taking
further proceedings below.
In a Resolution dated October 31, 1990, the Court of
Appeals resolved not to grant the prayer for restraining
order or writ of preliminary injunction, there being no clear
showing that the spouses Evangelista were entitled thereto.
On June 27, 1991, the Court of Appeals granted the
petition for certiorari and rendered the questioned decision.
The motion for reconsideration filed by herein petitioner
Cuartero was denied for lack of merit in a resolution dated
October 22, 1991. Hence, the present recourse to this
Court.
The petitioner raises the following assignment of errors:
I
THE COURT OF APPEALS ERRED AND
COMMITTED A GRAVE ABUSE OF
DISCRETION, AMOUNTING TO LACK OF
JURISDICTION WHEN IT HELD THAT
THE REGIONAL TRIAL COURT DID NOT
ACQUIRE
JURISDICTION
OVER
RESPONDENT SPOUSES.
II
THE COURT OF APPEALS ERRED AND
ACTED WITH GRAVE ABUSE OF
DISCRETION WHEN IT HELD THAT THE
REGIONAL TRIAL COURT COULD NOT
VALIDLY ISSUE THE SUBJECT WRIT OF
PRELIMINARY ATTACHMENT WHICH IS
AN ANCILLARY REMEDY. (Rollo, p. 13)
The Court of Appeals' decision is grounded on its finding
that the trial court did not acquire any jurisdiction over the
person of the defendants (private respondents herein). It
declared that:
. . . the want of jurisdiction of the trial
court to proceed in the main case as well
as the ancillary remedy of attachment is
quite clear. It is not disputed that
neither service of summons with a copy
of
the
complaint
nor
voluntary
AGUSTIN, E.P.
appearance of petitioners was had in this

case before the trial court issued the
assailed order dated August 24, 1990, as
well as the writ of preliminary
attachment dated September 19, 1990.
This is reversible error and must be
corrected on certiorari. (Rollo, p. 24)
The appellate tribunal relied on the case of Sievert v. Court
of Appeals, 168 SCRA 692 (1988) in arriving at the
foregoing conclusion. It stated that:
Valid service of summons and a copy of
the complaint vest jurisdiction in the
court over the defendant both for the
purpose of the main case and for
purposes of the ancillary remedy of
attachment and a court which has not
acquired jurisdiction over the person of
defendant, cannot bind the defendant
whether in the main case or in any
ancillary proceeding such as attachment
proceedings (Sievert v. Court of Appeals,
168 SCRA 692). (Rollo, p. 24)
The private respondents, in their comment, adopted and
reiterated the aforementioned ruling of the Court of
Appeals. They added that aside from the want of
jurisdiction, no proper ground also existed for the issuance
of the writ of preliminary attachment. They stress that the
fraud in contracting the debt or incurring the obligation
upon which the action is brought which comprises a
ground for attachment must have already been intended at
the inception of the contract. According to them, there was
no intent to defraud the petitioner when the postdated
checks were issued inasmuch as the latter was aware that
the same were not yet funded and that they were issued
only for purposes of creating an evidence to prove a preexisting obligation.
Another point which the private respondents raised in their
comment is the alleged violation of their constitutionally
guaranteed right to due process when the writ was issued
without notice and hearing.
In the later case of Davao Light and Power Co., Inc. v. Court
of Appeals, G.R. No. 93262, November 29, 1991, we had
occasion to deal with certain misconceptions which may
have arisen from our Sievert ruling. The question which
was resolved in the Davao Light case is whether or not a
writ of preliminary attachment may issue ex-parte against a
defendant before the court acquires jurisdiction over the
latter's person by service of summons or his voluntary
submission to the court's authority. The Court answered in
the affirmative. This should have clarified the matter but
apparently another ruling is necessary.
A writ of preliminary attachment is defined as a provisional
remedy issued upon order of the court where an action is
pending to be levied upon the property or properties of the
defendant therein, the same to be held thereafter by the
sheriff as security for the satisfaction of whatever judgment
might be secured in said action by the attaching creditor
against the defendant (Adlawan v. Tomol, 184 SCRA 31
[1990] citing Virata v. Aquino, 53 SCRA 30-31 [1973]).
34
Under section 3, Rule 57 of the Rules of Court, the only

requisites for the issuance of the writ are the affidavit and
bond of the applicant. As has been expressly ruled in BF
Homes, Inc. v. Court of Appeals, 190 SCRA 262 (1990),
citing Mindanao Savings and Loan Association, Inc. v. Court
of Appeals, 172 SCRA 480 (1989), no notice to the adverse
party or hearing of the application is required inasmuch as
the time which the hearing will take could be enough to
enable the defendant to abscond or dispose of his property
before a writ of attachment issues. In such a case, a
hearing would render nugatory the purpose of this
provisional remedy. The ruling remains good law. There is,
thus, no merit in the private respondents' claim of violation
of their constitutionally guaranteed right to due process.
The writ of preliminary attachment can be applied for and
granted at the commencement of the action or at any time
thereafter (Section 1, Rule 57, Rules of Court). In Davao
Light and Power, Co., Inc. v. Court of Appeals, supra, the
phrase "at the commencement of the action" is interpreted
as referring to the date of the filing of the complaint which
is a time before summons is served on the defendant or
even before summons issues. The Court added that
. . . after an action is properly
commenced by filing of the complaint
and the payment of all requisite docket
and other fees the plaintiff may apply
and obtain a writ of preliminary
attachment upon the fulfillment of the
pertinent requisites laid down by law,
and that he may do so at any time,
either before or after service of summons
on the defendant. And this, indeed, has
been the immemorial practice sanctioned
by the courts: for the plaintiff or other
proper
party
to
incorporate
the
application for attachment in the
complaint or other appropriate pleading
(counter-claim, cross-claim, third-partyclaim) and for the Trial Court to issue
the writ ex-parte at the commencement
of the action if it finds the application
otherwise sufficient in form and
substance.
The Court also pointed out that:
. . . It is incorrect to theorize that after
an action or proceeding has been
commenced and jurisdiction over the
person of the plaintiff has been vested in
the Court, but before acquisition of
jurisdiction over the person of the
defendant (either by service of summons
or his voluntary submission to the Court's
authority), nothing can be validly done by
the plaintiff or the Court. It is wrong to
assume that the validity of acts done
during the period should be dependent
on, or held in suspension until, the
actual obtention of jurisdiction over the
defendants person. The obtention by the
court of jurisdiction over the person of
the defendant is one thing; quite another
is the acquisition of jurisdiction over the
person of the plaintiff or over the subject
AGUSTIN, E.P.
matter or nature of the action, or the res

or object thereof.
It is clear from our pronouncements that a writ of
preliminary attachment may issue even before summons is
served upon the defendant. However, we have likewise
ruled that the writ cannot bind and affect the defendant.
However, we have likewise ruled that the writ cannot bind
and affect the defendant until jurisdiction over his person
is eventually obtained. Therefore, it is required that when
the proper officer commences implementation of the writ of
attachment, service of summons should be simultaneously
made.
It must be emphasized that the grant of the provisional
remedy of attachment practically 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 should first be obtained.
However, once the implementation commences, it is
required that 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.
In Sievert v. Court of Appeals, supra, cited by the Court of
Appeals in its questioned decision, the writ of attachment
issued ex-parte was struck down because when the writ of
attachment was being implemented, no jurisdiction over
the person of the defendant had as yet been obtained. The
court had failed to serve the summons to the defendant.
The circumstances in Sievert are different from those in the
case at bar. When the writ of attachment was served on the
spouses Evangelista, the summons and copy of the
complaint were also simultaneously served.
It is appropriate to reiterate this Court's exposition in the
Davao Light and Power case cited earlier, to wit:
of which can only be had in appropriate proceedings

conducted for the purpose (Peroxide Philippines
Corporation V. Court of Appeals, 199 SCRA 882 [1991]). It
must be noted that the spouses Evangelista's motion to
discharge the writ of preliminary attachment was denied by
the lower court for lack of merit. There is no showing that
there was an abuse of discretion on the part of the lower
court in denying the motion.
Moreover, an attachment may not be dissolved by a
showing of its irregular or improper issuance if it is upon a
ground which is at the same time the applicant's cause of
action in the main case since an anomalous situation
would result if the issues of the main case would be
ventilated and resolved in a mere hearing of a motion
(Davao Light and Power Co., Inc. v. Court of Appeals,
supra, The Consolidated Bank and Trust Corp. (Solidbank)
v. Court of Appeals, 197 SCRA 663 [1991]).
In the present case, one of the allegations in petitioner's
complaint below is that the defendant spouses induced the
plaintiff to grant the loan by issuing postdated checks to
cover the installment payments and a separate set of
postdated cheeks for payment of the stipulated interest
(Annex "B"). The issue of fraud, then, is clearly within the
competence of the lower court in the main action.
WHEREFORE, premises considered, the Court hereby
GRANTS the petition. The challenged decision of the Court
of Appeals is REVERSED, and the order and writ of
attachment issued by Hon. Cezar C. Peralejo, Presiding
Judge of Branch 98, Regional Trial Court of Quezon City
against spouses Evangelista are hereby REINSTATED. No
pronouncement as to costs.
SO ORDERED.
Feliciano, Bidin and Davide, Jr., JJ., concur.
Romero, J., took no part.
. . . writs of attachment may properly

issue ex-parte provided that the Court is
satisfied that the relevant requisites
therefore have been fulfilled by the
applicant, although it may, in its
discretion, require prior hearing on the
application with notice to the defendant,
but that levy on property pursuant to the
writ thus issued may not be validly
effected
unless
preceded,
or
contemporaneously
accompanied
by
service on the defendant of summons, a
copy of the complaint (and of the
appointment of guardian ad litem, if
any), the application for attachment (if
not incorporated in but submitted
separately from the complaint), the order
of attachment, and the plaintiff's
attachment bond.
The question as to whether a proper ground existed for the
issuance of the writ is a question of fact the determination
35
AGUSTIN, E.P.
2. SALAS vs. ADIL

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-46009 May 14, 1979
RICARDO T. SALAS and MARIA SALAS, petitioners,
vs.
HON. MIDPANTAO L. ADIL, as Judge of Branch II, Court
of First Instance of Iloilo, ROSITA BEDRO and BENITA
YU, respondents.
Castro Law Office for petitioners.
Tirso Espelete and Fortunato A. Padilla for private
respondents.
ANTONIO, J.:
Certiorari to nullify the Order of Attachment of May 13,
1977, as well as the Writ of Attachment dated May 16,
1977, issued by respondent Judge in Civil Case No. 10770
of the Court of First Instance of Iloilo, entitled "Rosita Bedro
and Benita Yu v. Spouses Ricardo T. Salas and Maria Salas,
et al.
On September 10, 1976, respondents Rosita Bedro and
Benita Yu filed the afore-mentioned civil action with the
Court of First Instance of Iloilo against herein petitioners
Ricardo T. Salas and Maria Salas, the Philippine
Commercial & Industrial Bank, in its capacity as
Administrator of the Testate Estate of the deceased Charles
Newton Hodges, and Avelina A. Magno, in her capacity as
Administratrix of the Testate Estate of the deceased Linnie
Jane Hodge to annul the deed of sale of Lot No. 5 executed
by administrators of the Hodges Estate in favor of the
Spouses Ricardo T. Salas and Maria Salas and for
damages. The action for annulment was predicated upon
the averment that Lot No. 5, being a subdivision road, is
intend for public use and cannot be sold or disposed of by
the Hodges Estate. The claim for damages was based on
the assertion that after defendant spouses purchased Lots
Nos. 2 and 3, they also purchased Lot No. 5 and thereafter
"erected wooden posts, laid and plastered at the door of the
house on Lot No. 3, with braces of hardwood, lumber and
plywood nailed to the post", thereby preventing Rosita
Bedro and Benita Yu from using the road on the aforementioned lot, Lot No. 5, and that as a result of such
obstruction, private respondents Rosita Bedro and Benita
Yu sustained actual damages in the amount of
P114,000.00, plus the sum of Pl,000.00 as damages daily
from June 30, 1976 due to the stoppage in the
construction of their commercial buildings on Lot No. 3,
and moral damages in the amount of P200,000.00.
In their answer to the complaint, the Salas spouses, after
specifically denying the material allegations in the
complaint, stated that Lot No. 5 had been registered in the
name of the C. N. Hodges as their exclusive private
36
property and was never subjected to any servitude or

easement of right of way in favor of any person; that any
occupants of Lots Nos. 2 and 3 have direct access to
Bonifacio Drive, a National Highway, hence, Lot No. 5 is
neither needed nor required for the egress or ingress of the
occupants thereof; and that private respondents, as a
matter of fact, since 1964 had excluded and separated
completely their property (Lots Nos. 2 and 3) from Lot No. 5
by building a concrete wall on the boundary thereon
without providing any gate as entrance or exit towards Lot
No. 5; and that private respondents have no personality to
question the validity of the deed of sale over Lot No. 5 since
they were not parties to the same and the sale was duly
approved by the probate court.
In a motion dated May 12, 1977, private respondents filed
a Motion for Attachment, alleging, among others, that the
case was "for annulment of a deed of sale and recovery of
damages" and that the defendants have removed or
disposed of their properties or are about to do so with
intent to defraud their creditors especially the plaintiffs in
this case.
On May 13, 1977, respondent Judge issued ex-parte a Writ
of Attachment "against the properties of the defendants
particularly Lots Nos. 1 and 4 of Psc-2157 less the building
standing thereon upon the plaintiffs filing a bond in the
amount of P200,000.00 subject to the approval of this
Court." After a surety bond in the amount of P200,000.00,
executed on May 11, 1977 by the Central Surety and
Insurance Company as surety was filed, the writ itself was
issued by respondent Judge on May 16, 1977, directing the
Sheriff to attach the properties above-mentioned. On May
17, 1977, the Deputy Sheriff of Iloilo levied upon the
aforesaid properties of petitioners.
Contending that respondent Judge gravely abused his
discretion in issuing the said Writ of Attachment,
petitioners filed the present petition.
In certiorari proceedings, the cardinal rule is that the court
must be given the opportunity to correct itself, Thus, for
the special civil action of certiorari to prosper, there must
be no appeal nor any plain, speedy and adequate remedy in
the ordinary course of law. Petitioners, therefore, must
exhaust all available remedies in the lower court before
filing a petition for certiorari, otherwise the petition shall be
held to be premature.
In the instant case, it appears that petitioners have
adequate remedy under the law. They could have filed an
application with the court a quo for the discharge of the
attachment for improper or irregular issuance under
section 13, Rule 57, of the Revised Rules of Court, which
provides the following
SEC. 13. Discharge of attachment for
improper or irregular issuance. The
party whose property has been attached
may also, at any time either before or
after the release of the attached property,
or before any attachment shall have been
actually levied, upon reasonable notice
to the attaching creditor, apply to the
judge who Salas vs. Adil granted the
order, or to the judge of the court in
AGUSTIN, E.P.
which the action is pending, for an order

to discharge the attachment on the
ground that the same was improperly or
irregularly issued. If the motion be made
on affidavits on the part of the party
whose property has been attached, but
not otherwise, the attaching creditor may
oppose the same by counter-affidavits or
other evidence in addition to that on
which the attachment was made. After
hearing, the judge shall order the
discharge of the attachment if it appears
that it was improperly or irregularly
issued and the defect is not cured
forthwith.
defraud his creditors, as examples of

which disposals he pointed to the alleged
sale of the horses and of petitioner's
office furniture. ... These averments of
fraudulent disposals were controverted
by petitioner who ... reiterated the
defenses against preliminary attachment
which he had previously enumerated in
his petition to discharge the two orders
of attachment. Thus the question of
fraudulent disposal was put in issue;
and respondent Judge, before issuing
the pre attachment anew, should have
given the parties opportunity to prove
their respective claims or, at the very
least should have provided petitioner
with the chance to show that he had not
been disposing of his property in fraud of
creditors.
(citing
National
Coconut
Corporation v. Pecson L-4296, Feb. 25,
1952, Villongco v. Panlilio, 6214, Nov. 20,
1953).
Considering that petitioners have not availed of this

remedy, the instant petition is premature.
We deem it necessary, however, for the guidance of
respondent Court and of the parties, to stress herein the
nature of attachment as an extraordinary provisional
remedy.
A preliminary attachment is a rigorous remedy, which
exposes the debtor to humiliation and annoyance, such it
should not be abused as to cause unnecessary prejudice. It
is, therefore, the duty of the court, before issuing the writ,
to ensure that all the requisites of the law have been
complied with; otherwise the judge acts in excess of his
jurisdiction and the so issued shall be null and void . 1
In Carpio v. Macadaeg,
this Court said:
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, thereby leaving no security for
the satisfaction of any judgment. Mere
removal or disposal of property, by itself,
is not ground for issuance of preliminary
attachment, notwithstanding absence of
any security for the satisfaction of any
judgment against the defendant. The
removal
or
disposal,
to
justify
preliminary attachment, must have been
made with intent to defraud defendant's
creditors.
And in Garcia v. Reyes, 3 considering the allegation that the

debtors were removing or disposing of some of their
properties with intent to defraud their creditors, 'this Court
said that "(a)ll in all due process would seem to require that
both parties further ventilate their respective contentions
in a hearing that could indeed reveal the truth. Fairness
would be served thereby, the demand of reason satisfied."
Considering the gravity of the allegation that herein
petitioners have removed or disposed of their properties or
are about to do so with intent to defraud their creditors,
and further considering that the affidavit in support of the
pre attachment merely states such ground in general
terms, without specific allegations of lances to show the
reason why plaintiffs believe that defendants are disposing
of their properties in fraud of creditors, it was incumbent
upon respondent Judge to give notice to petitioners and to
allow wherein evidence is them to present their position at
a to be received. Moreover, it appears from the records that
private respondents are claiming unliquidated damages,
including moral damages, from petitioners. The authorities
agree that the writ of attachment is not available 'm a suit
for damages where the amount claimed is contingent or
unliquidated.
We think, however, that a rule sufficient
for the determination of this case has
been suggested and acted upon, and
that the remedy does not exist where
unliquidated damages were demanded.
... In Warwick v. Chase, 23 Md 161, it is
said: 'It is necessary that the standard
for ascertaining the amount of damages
claimed should not only appear, but that
it should be fixed and certain, and in no
degree dependent on facts either
speculative or Uncertain ... The general
rule is, that unliquidated damages, ...
cannot be recovered by attachment,
unless the contract affords a certain
measure or standard for ascertaining the
amount of the damages ... 4
Respondent Judge in fact corrected

himself. Acting on petitioner's motion to
discharge attachment and apparently
believing the correctness of the grounds
alleged therein, he set aside the orders of
attachment (Order of March 11, 1960,
Annex F)
But reversing himself again, he set aside
his order of March 11, 1960 (Annex K,
dated March 29, 1960). This he did
apparently on Abaya's contention that
petitioner was about to remove or
dispose of his property in order to
37
Further.
AGUSTIN, E.P.
The statute authorizing the issuance of

the writ of garnishment and that relating
to the issuance of the writ of attachment
... have not been construed as
authorizing the writs to be issued when
the plaintiff's suit is technically an action
for debt. Neither of the writs may be
issued when the suit is for damages for
tort, but they may be issued when the
plaintiff's claim arises out of contract
either express or implied, and the
demand is liquidated, that is, the
amount of the claim is not contingent, is
capable of being definitely ascertained by
the usual means of evidence, and does
not rest in the discretion of the jury. 5
WHEREFORE, the instant petition is hereby DENIED, in
order to enable petitioners to move before respondent Court
for the discharge of the attachment on the ground of its
improper and irregular issuance, pursuant to section 13,
Rule 57, of the Revised Rules of Court, and for the
aforesaid Court to act thereon in accordance with the
foregoing.
Fernando, Aquino, Concepcion, Jr., and Santos JJ., concur.
Abad Santos J., took no part.
Barredo, J., is on leave.
38
AGUSTIN, E.P.
3. JARDINE MANILA FINANCE vs. CA

SUPREME COURT
Manila
THIRD DIVISION
plus interest of P 16,614.64 as of September 6, 1979 and

25 % of the aforesaid amount as attorney's fees, exemplary
damages and other expenses of litigation.
Likewise contained in said complaint is petitioner's
application for a writ of preliminary attachment against
private respondents. The allegations in support of said
petition for a writ of preliminary attachment are quoted in
full:
G.R. No. 55272 April 10, 1989

Special Allegations for Preliminary Attachment
JARDINE-MANILA FINANCE, INC., petitioner,
vs.
COURT OF APPEALS, IMPACT CORPORATION,
RICARDO DE LEON and EDUARDO DE LEON,
respondents.
Angara, Abello, Concepcion, Regala & Cruz for petitioner.
Ramon Quisumbing, Jr. & Associates for private
respondents.
FERNAN, C.J.:
This is a petition for review on certiorari seeking to reverse
and set aside: (a) the August 29, 1980 decision of the Court
of Appeals 1 in Special Proceedings CA-G.R. No. SP-09972R entitled "Impact Corporation, et al. v. Hon. Buenaventura
Guerrero, etc., et al." annulling the order and the writ of
attachment issued by the Court of First Instance of Rizal in
Civil Case No. 34617 entitled "Jardine-Manila Finance, Inc.
v. Impact Corporation, et al." 2 and (b) the Resolution dated
October 7, 1980 denying herein petitioners motion for
reconsideration. 3
On September 28, 1979, petitioner Jardine-Manila
Finance, Inc. (JARDINE) filed a complaint in the then Court
of First Instance (CFI) of Rizal, docketed as Civil Case No.
34617, against private respondents Impact Corporation
(IMPACT), Ricardo de Leon and Eduardo de Leon, to collect
various sums of money allegedly due from therein
defendant IMPACT under a credit accomodation by way of
a discounting line agreement. 4 Herein private respondents
Ricardo de Leon and Eduardo de Leon were included as
defendants by virtue of their undertaking covered by a
Surety Agreement under which they bound themselves
jointly and severally with defendant IMPACT to pay herein
petitioner all of IMPACT's obligations under the aforesaid
agreement. 5
It was alleged that in April and May 1979, IMPACT
assigned its receivables to JARDINE on the condition that
IMPACT was to collect them on their due dates from their
issuers and remit the collected amounts to JARDINE
and/or repurchase the assigned receivables; 6 but despite
the fact that IMPACT had collected the amounts due on
said receivables, it failed or refused to turn over the
amounts so collected to JARDINE.
JARDINE thus demanded payment of P 1,000,212.64, the
total amount due under said various deeds of assignment,
39
A. The foregoing allegations are

hereby repleaded and made integral
parts hereof.
B. The defendant corporation at the
time of the execution of the
aforesaid deeds of assignment had
reservation not to remit to plaintiff
the proceeds of the receivables
assigned to plaintiff as confirmed by
their refusal to remit the same to
plaintiff although the issuers of the
receivables assigned to plaintiff had
already
paid
to
defendant
corporation their obligations on said
receivables to the latter.
C. Defendants Ricardo de Leon and
Eduardo de Leon who are likewise
officers of defendant corporation in
order to elicit plaintiffs approval to
enter into said deeds of assignment
with
defendant
corporation,
executed
the
aforesaid
surety
agreement (Annex L), likewise, with
reservation in their minds not to
honor their obligations under the
same as what they actually did
when they refused to pay the
obligations of defendant corporation
to
plaintiff
pursuant
to
the
provisions of said surety agreement.
(Annex L)
D. Defendant corporation, Ricardo
de Leon and Eduardo de Leon have
no visible other sufficient security
for the claim sought to be enforced
by this action of plaintiff other than
their real and personal properties
which are located in Metro Manila
and in the province of Rizal, Province
of Nueva Ecija or elsewhere.
(Emphasis supplied)
E.
Plaintiffs
action
against
defendant corporation is based upon
documents
and
therefrom
a
sufficient cause of action exists.
F. Plaintiff is willing to post a bond
in an amount to be fixed by the
Honorable Court, not exceeding
AGUSTIN, E.P.
plaintiffs claim which will be

conditioned to the effect that
plaintiff will pay all the costs which
may be adjudged to the adverse
party and all damages which they
may
sustain
by
reason
of
attachment, if the Honorable Court
should finally adjudge that the
applicant plaintiff is not entitled
thereto.7
On the basis of the foregoing allegations, the lower court
granted JARDINE's petition for the issuance of a writ of
preliminary attachment on October 16, 1979. 8
On October 19, 1979, therein defendants filed a motion to
set aside the writ of preliminary attachment. They also
submitted to the court a quo a memorandum in support of
their motion to dissolve the attachment contending that the
grounds alleged by the plaintiff in its application for a writ
of attachment are not among the grounds specified under
Section 1 of Rule 57; that the defendants have other
sufficient security; that there was no affidavit of merit to
support the application for attachment as required by
Section 3 of Rule 57 and that the verification of the
complaint was defective as it did not state that the amount
due to the plaintiff above all legal set-ups or counterclaims
is as much as the sum for which the order is sought. 9
JARDINE opposed the motion arguing that the mental
reservation of defendants at the time of the execution of the
deeds of assignment constituted fraud; that such fraud was
further confirmed by the fact that defendants actually
failed to remit the proceeds of the collection of receivables
assigned by them; that defendants failed to disclose to the
plaintiff the fact that they had already collected the
receivables assigned by them; that the amounts collected
by defendant corporation were received by defendants in
trust for plaintiff and defendant corporation appropriated
for itself said collection. 10
On November 7, 1979, the trial court denied defendant's
motion to annul the writ of preliminary attachment.
Thereupon, defendant Impact Corporation went to the
appellate court on a petition for certiorari seeking to annul
said writ. 11
The findings of the Court of Appeals are as follows:
To our mind there is no question that
the allegations of the complaint proper
which were repleaded and made integral
part of the application for preliminary
attachment (paragraph A) made out a
case of conversion or misappropriation of
property held in trust which is the
subject of the complaint for the
allegations stated that IMPACT had
assigned to JARDINE certain receivables
with the understanding that it was to
collect the same from the issuers of said
receivables and deliver the amounts
collected to JARDINE, but in spite of the
fact that IMPACT had actually collected
said amounts, it failed to turn over said
receivables to JARDINE. There was,
40
therefore, in the allegations of said

complaint true conversion of the
amounts received by defendant in trust
for plaintiff. Defendants in their motion
to discharge the attachment and the
memorandum filed by them in support of
said motion had in effect, admitted the
conversion of the amounts collected by
defendant IMPACT, but justified the use
of said amounts to meet its operational
expenses
to
prevent
a
complete
shutdown of its operations.
While we find that the grounds alleged
by
plaintiff,
the
herein
private
respondent, to support its application for
preliminary attachment are among those
enumerated in Section 1 of Rule 57 as
grounds upon which an attachment may
be
issued,
we
are
constrained
nonetheless to rule against the regularity
or legality of the attachment issued by
respondent Court because there was no
allegation made by plaintiff in its
application for the issuance of a writ of
attachment to the effect 'that there is no
sufficient security for the claim sought to
be enforced, by the action, and the
amount due to the applicant or the value
of the property on the basis of which is
entitled to recover, is as much as the
sum for which the order is granted above
all legal counterclaims, a requirement for
the granting of an order of attachment
under Section 3 of Rule 57. 12
Thus, on August 29, 1980, the Court of Appeals annulled
the assailed writ of attachment for having been issued
improperly and irregularly, the dispositive portion of which
reads:
IN VIEW OF THE FOREGOING, the
petition to annul the order and the writ
of attachment issued by respondent
Court is hereby GRANTED and judgment
is rendered declaring said order and writ
of attachment null and void for having
been issued improperly and regularly.
The restraining order issued by this
Court on November 9, 1979 restraining
respondents from enforcing the writ of
attachment issued by respondent Judge
on October 16, 1979 is hereby made
PERMANENT. With costs against private
respondents. 13
Hence this recourse.
Reduced to bare essentials, the records show that in the
exercise of its discretion, the lower court found justification
in the issuance of the attachment. On the other hand, the
Court of Appeals while in accord with the lower court that a
sufficient cause of action exists for petitioner and that the
ground for its application for attachment is one of those
mentioned in Section 1, Rule 57 of the Rules of Court,
found the issuance of the attachment irregular or illegal in
AGUSTIN, E.P.
the absence of the following allegations in the application

for attachment: (1) that "there is no sufficient security for
the claim sought to be enforced by the action; and (2) that
the amount due to the applicant or the value of the
property on the basis of which he is entitled to recover, is
as much as the sum for which the order is granted above
all legal counterclaims."
Ultimately, the issue therefore, is whether or not noncompliance with the formal requirements invalidate the
writ of attachment.
On both counts, petitioner admits not having used the
exact words of the Rules in making the requisite
allegations, but nonetheless it alleged that it presented
ultimate and specific facts, first-in showing that there is
indeed no other sufficient security for the claim sought to
be enforced as shown in paragraph D of the Complaint
earlier quoted; and second-while it did not specifically state
that the sum due is above all legal counterclaims, such
conclusion of fact is no longer necessary in the face of
actual proof in the answer which did not carry any
counterclaim. In fine, petitioner stresses that mere forms
must not be given more weight than substance. 14
In excusing the deficiencies of its application for a writ of
preliminary attachment, petitioner relies heavily on the
case of De Borja v. Platon, 15 where this Court sustained
the writ of attachment issued by the lower court in favor of
the defendants based on the counterclaim of the latter
despite the lack of allegations in the affidavit attached to
the petition for the issuance of the writ of attachment that
the amount due the counterclaim was as much as the sum
for which the order is granted above all legal
counterclaims.
It will be noted however, that the trial court found that the
counterclaim of the defendants exceeded the claims of the
plaintiff. Thus, this Court held that "as the trial court had
before it the evidence adduced by both sides, the petition
for a writ of preliminary attachment having been filed four
years after the trial court had begun, we presume that the
lower court having in mind such evidence, ordered the
attachment accordingly." 16
In sharp contrast, in the case at bar, where the records
undeniably reveal that: (1) the complaint was filed on
September 28, 1979; 17 (2) the writ of preliminary
attachment was issued on October 16, 1979; 18 (3) the
motion to annul preliminary attachment dated October 19,
1979 was filed on the same day; 19 (4) the answer of
defendant IMPACT dated October 30, 1979 20 was received
by the RTC Pasig only on November 5, 1979, 21 it is
evident that the questioned writ was issued ex parte; and
at a time when the Court a quo had yet no basis for
concluding that the amount due to petitioner is as much as
the sum for which the order is granted above all legal
counterclaims.
It is therefore, readily apparent that the conclusions in the
De Borja case cannot be applied to the case at bar. In fact
even petitioner's plea for liberality as it vigorously invokes
the doctrine on said case which refused "to sanction that
formalism and that technicality which are discountenanced
by the modern laws of procedure" is an obvious misreading
of the ruling of this Court which states:
41
On the first point, we believe a writ of

preliminary attachment may be issued in
favor of a defendant who sets up a
counterclaim. For the purpose of the
protection afforded by such attachment,
it is immaterial whether the defendants
Borja and wife simply presented a
counterclaim or brought a separate civil
action against Jose de Borja, plaintiff in
the previous case and petitioner herein.
To lay down a subtle distinction would
be to sanction that formalism and that
technicality which are discountenanced
by the modern laws of procedure for the
sake of speedy and substantial justice. .
. . 22
as a liberal approach to the required allegations in the
application for a writ of preliminary attachment when what
this Court actually allowed was the presentation of a
counterclaim by the defendant instead of a separate civil
action in compliance with one of the basic requirements for
the issuance of said writ.
The authority to issue an attachment, like the jurisdiction
of the court over such proceedings rests on express
statutory provisions and unless there is authority in the
statute, there is no power to issue the writ, and such
authority as the statute confers must be strictly
construed.23 In fact, "(E)ven where liberal construction is
the rule, the statute or the right to attachment thereby
granted may not be extended by judicial interpretation
beyond the meaning conveyed by the words of the statute."
24 Petitioner's application for a writ of preliminary
attachment must therefore be scrutinized and assessed by
the requisites and conditions specifically prescribed by law
for the issuance of such writ.
Section 3, Rule 57 of the Revised Rules of Court governs
the issuance of a writ of attachment, to wit:
Sec. 3. Affidavit and bond required.-An
order of attachment shall be granted
only when it is made to appear by the
affidavit of the applicant or some other
person who personally knows of the
facts, that a sufficient cause of action
exists, that the case is one of those
mentioned in section 1 hereof, that there
is no sufficient security for the claim
sought to be enforced by the action, and
that the amount due to applicant or the
value of the property the possession of
which he is entitled to recover is as
much as the sum for which the order is
granted above all legal counterclaims.
The stringent conditions for the issuance of the writ have
been echoed in all subsequent cases, even as late as K.O.
Glass Construction Co. Inc. vs. Valenzuela, 25 wherein the
writ of preliminary attachment issued was annulled and set
aside on the findings that while the plaintiff "may have
stated in his affidavit that a sufficient cause of action exists
against the defendant Kenneth O. Glass, he did not state
therein that the case is one of those mentioned in Section 1
hereof; that there is no other sufficient security for the
AGUSTIN, E.P.
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 is granted above all legal counterclaims."
More specifically, it has been held that the failure to allege
in the affidavit the requisites prescribed for the issuance of
the writ of preliminary attachment, renders the writ of
preliminary attachment issued against the property of the
defendant fatally defective, and the judge issuing it is
deemed to have acted in excess of his jurisdiction. 26 In
fact, in such cases, the defect cannot even be cured by
amendment. 27
Since the attachment is a harsh and rigorous remedy
which exposes the debtor to humiliation and annoyance,
the rule authorizing its issuance must be strictly construed
in favor of defendant. It is the duty of the court before
have been complied with. 28 Otherwise, a judge acquires
no jurisdiction to issue the writ.
The general rule is that the affidavit is the foundation of
the writ, and if none be filed or one be filed which wholly
fails to set out some facts required by law to be stated
therein, there is no jurisdiction and the proceedings are
null and void. Thus, while not unmindful of the fact that
the property seized under the writ and brought into court
is what the court finally exercises jurisdiction over, the
court cannot subscribe to the proposition that the steps
pointed out by statutes to obtain such writ are
inconsequential, and in no sense jurisdictional. 29
Considering that petitioner's application for the subject
writ of preliminary attachment did not fully comply with
the requisites prescribed by law, said writ is, as it is hereby
declared null and void and of no effect whatsoever.
This conclusion renders a discussion of petitioner's other
argument unnecessary.
WHEREFORE, the decision of the Court of Appeals dated
August 29, 1980 is hereby AFFIRMED. Costs against
petitioner.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur.
42
AGUSTIN, E.P.
4. LA GRANJA vs. SAMSON

SUPREME COURT
Manila
EN BANC
G.R. No. 40054
September 14, 1933
LA GRANJA, INC., petitioner,

vs.
FELIX SAMSON, Judge of First Instance of Cagayan,
CHUA BIAN, CHUA YU LEE and CHUA KI, respondents.
Miguel P. Pio for petitioner.
The Respondent Judge in his own behalf.
No appearance for other respondents.
VILLA-REAL, J.:
In this original petition for mandamus filed by the
corporate entity, La Granja, Inc., against Felix Samson, as
Judge of the Court of First Instance of Cagayan, Chua
Bian, Chua Yu Lee and Chua Ki, the petitioner herein, for
the reasons stated in its petition, prays that a writ of
mandamus be issued against the respondent Judge
compelling him to issue a writ of attachment against the
properties of the other respondents herein, who are
defendants in civil case No. 1888 of the Court of First
Instance of Cagayan. The pertinent facts necessary for the
solution of the questions raised in the present case are as
follows:
On July 5, 1932, the petitioner herein, La Granja, Inc.,
filed a complaint in the Court of First Instance of Cagayan,
against Chua Bian, Chua Yu Lee and Chua Ki, for the
recovery of the sum of P2,418.18 with interest thereon at
the rate of 12 per cent per annum, which case was
docketed as civil case No. 1888. The plaintiff at the same
time, also prayed for the issuance of an order of
attachment against the aforementioned defendants'
property and accompanied said complaint with an affidavit
of the manager of the aforesaid petitioner, La Granja, Inc.,
wherein it was alleged among other essential things, that
the said defendants have disposed or are disposing of their
properties in favor of the Asiatic Petroleum Co., with intent
to defraud their creditors. The respondent judge, wishing to
ascertain or convince himself of the truth of the alleged
disposal, required the petitioner herein to present evidence
to substantiate its allegation, before granting its petition.
Inasmuch as the petitioner refused to comply with the
court's requirement, alleging as its ground that was not
obliged to do so, the respondent judge dismissed said
petition for an order of attachment.
SEC. 426. Granting order of attachment. A

judge or justice of the peace shall grant an order
of attachment when it is made to appear to the
judge or justice of the peace by the affidavit of the
plaintiff, or of some other person who knows the
facts, that a sufficient cause of action exists, and
that the case is one of those mentioned in section
four hundred and twenty-four, and that there is
no other sufficient security for the claim sought to
be enforced by the action, and that the amount
due to the plaintiff above all legal set-offs or
counterclaims is as much as the sum for which
the order is granted.
It will be seen that the legal provision just cited orders the
granting of a writ of attachment when it has been made to
appear by affidavit that the facts mentioned by law as
sufficient to warrant the issuance thereof, exist. Although
the law requires nothing more than the affidavit as a
means of establishing the existence of such facts,
nevertheless, such affidavit must be sufficient to convince
the court of their existence, the court being justified in
rejecting the affidavit if it does not serve this purpose and
in denying the petition for an order of attachment. The
affidavit filed by the petitioner, La Granja, Inc., must not
have satisfied the respondent judge inasmuch as he
desired to ascertain or convince himself of the truth of the
facts alleged therein by requiring evidence to substantiate
them. The sufficiency or insufficiency of an affidavit
depends upon the amount of credit given it by the judge,
and its acceptance or rejection, upon his sound discretion.
Hence, the respondent judge, in requiring the presentation
of evidence to establish the truth of the allegation of the
affidavit that the defendants had disposed or were
disposing of their property to defraud their creditors, has
done nothing more than exercise his sound discretion in
determining the sufficiency of the affidavit.
In view of the foregoing considerations, we are of the
opinion and so hold that the mere filing of an affidavit
executed in due form is not sufficient to compel a judge to
issue an order of attachment, but it is necessary that by
such affidavit it be made to appear to the court that there
exists sufficient cause for the issuance thereof, the
determination of such sufficiency being discretionary on
the part of the court.
Wherefore, the petition for a writ of mandamus is hereby
denied and the same is dismissed, with costs against the
petitioner. So ordered.
Malcolm, Abad Santos, Hull, and Imperial, JJ., concur.
The only question to decide in the present case is whether

or not the mere filing of an affidavit executed in due form is
sufficient to compel a judge to issue an order of
attachment.
Section 426 of the Code of Civil procedure provides the
following:
43
AGUSTIN, E.P.
Important Jurisprudential Rules
1. MABANAG vs. GALLEMORE

FIRST DIVISION
[G.R. No. L-825. July 20, 1948.]
ROMAN MABANAG, Plaintiff-Appellant, v. JOSEPH M.
GALLEMORE, Defendant-Appellee.
Santiago Catane for Appellant.
No appearance for Appellee.
SYLLABUS
COURTS; JURISDICTION; NON-RESIDENT DEFENDANT;
EFFECT OF ATTACHMENT OR GARNISHMENT.
Attachment or garnishment of property of a non-resident
defendant located in the Philippines confers jurisdiction on
the court in an otherwise personal action. In other words,
satisfaction.
DECISION
TUASON, J.:
This case, here on appeal from an order of dismissal by the
Court of First Instance of Occidental Misamis, raises the
question of the courts jurisdiction. More specifically, the
question is whether the action is in personam or one in
rem. The trial court opined that it is the first and that it
"has no authority nor jurisdiction to render judgment
against the herein defendant, Joseph M. Gallemore for
being a non-resident."
The purpose of the action is to recover P735.18, an amount
said to have been paid by the plaintiff to the defendant for
two parcels of land whose sale was afterward annulled. The
defendant is said to be residing in Los Angeles, California,
U. S. A. He has no property in the Philippines except an
alleged debt owing him by a resident of the municipality of
Occidental Misamis. This debt, upon petition of the
plaintiff, after the filing of the complaint and before the suit
was dismissed, was attached to the extent of plaintiffs
claim for the payment of which the action was brought. But
the attachment was dissolved in the same order dismissing
the case.
It was Atty. Valeriano S. Kaamio who as amicus curiae
filed the motion to dismiss and to set aside the attachment.
There is no appearance before this Court to oppose the
appeal.
Section 2, Rule 5, of the Rules of Court provides:
"If any of the defendants does not reside and is not found
in the Philippines, and the action affects the personal
status of the plaintiff, or any property of the defendant
located in the Philippines, the action may be commenced
44
and tried in the province where the plaintiff resides or the

property, or any portion thereof, is situated or found."
virtua1aw
library
The Philippine leading cases in which this Rule, or its
counterpart in the former Code of Civil Procedure, sections
377 and 395, were cited and applied, are Banco EspaolFilipino v. Palanca, 37 Phil. 921, and Slade Perkins v.
Dizon, 40 Off. Gaz., [3d Suppl. ], No. 7, p. 216. The gist of
this Courts ruling in these cases, in so far as it is relevant
to the present issues, is given in I Morans Comments on
the Rules of Court, 2d Ed., 105:jgc:chanrobles.com.ph
"As a general rule, when the defendant is not residing and
is not found in the Philippines, the Philippine courts
cannot try any case against him because of the
impossibility of acquiring jurisdiction over his person,
unless he voluntarily appears in court. But, when the
action affects the personal status of the plaintiff residing in
the Philippines, or is intended to seize or dispose of any
property, real or personal, of the defendant, located in the
Philippines, it may be validly tried by the Philippine courts,
for then, they have jurisdiction over the res, i. e., the
personal status of the plaintiff or the property of the
defendant, and their jurisdiction over the person of the
non-resident defendant is not essential. Venue in such
cases may be laid in the province where the plaintiff whose
personal status is in question resides, or where the
property of the defendant or a part thereof involved in the
litigation is located."
virtua1aw
library
Literally this Court said:
"Jurisdiction over the property which is the subject of
against all the world." (Banco Espaol-Filipino v. Palanca,
supra, 927-928.)
"In an ordinary attachment proceeding, if the defendant is
not personally served, the preliminary seizure is to be
attachment. (Roller v. Holly, 176 U. S., 398, 405; 44 Law.
AGUSTIN, E.P.
essentially in rem. (Id., 929-930.)
"When, however, the action relates to property located in
the Philippines, the Philippine courts may validly try the
case, upon the principle that a State, through its
tribunals, may subject property situated within its limits
owned by non-residents to the payment of the demand of
its own citizens against them; and the exercise of this
jurisdiction in no respect infringes upon the sovereignty of
the State where the owners are domiciled. Every State owes
protection to its own citizens; and, when non-residents deal
with them, it is a legitimate and just exercise of authority
to hold and appropriate any property owned by such nonresidents to satisfy the claims of its citizens. It is in virtue
of the States jurisdiction over the property of the nonresident situated within its limits that its tribunals can
inquire into the non-residents obligations to its own
citizens, and the inquiry can then be carried only to the
extent necessary to control the disposition of the property.
If the non-resident has no property in the State, there is
nothing upon which the tribunals can adjudicate." (Slade
Perkins v. Dizon, 40 Off. Gaz. [3d Supplement], No. 7, p.
216.)
to the jurisdiction of the court, the court is without

jurisdiction to render judgment until there has been a
lawful seizure of property owned by him within the
jurisdiction of the court." (2 R. C. L., 800-804.)
Tested by the foregoing decisions and authorities, the

Court has acquired jurisdiction of the case at bar by virtue
of the attachment of the defendants credit. Those
authorities and decisions, so plain and comprehensive as
to make any discussion unnecessary, are in agreement that
satisfaction.
It is our judgment that the court below erred in dismissing
the case and dissolving the attachment; and it is ordered
that, upon petition of the plaintiff, it issue a new writ of
attachment and then proceed to trial. The costs of this
appeal will be charged to defendant and appellee.
Paras, Actg. C.J., Feria, Pablo, Perfecto, Bengzon, Briones,
and Padilla, JJ., concur.
A fuller statement of the principle whereunder attachment

or garnishment of property of a non-resident defendant
confers jurisdiction on the court in an otherwise personal
action, appears in two well known and authoritative
works:chanrob1es
virtual
1aw
library
The main action in an attachment or garnishment suit is in
rem until jurisdiction of the defendant is secured.
Thereafter, it is in personam and also in rem, unless
jurisdiction of the res is lost as by dissolution of the
attachment. If jurisdiction of the defendant is acquired but
jurisdiction of the res is lost, it is then purely in personam .
. . a proceeding against property without jurisdiction of the
person of the defendant is in substance a proceeding in
rem; and where there is jurisdiction of the defendant, but
the proceeding against the property continues, that
proceeding is none the less necessarily in rem, although in
form there is but a single proceeding. (4 Am. Jur., 556557.)
As the remedy is administered in some states, the theory of
an attachment, whether it is by process against or to
subject the property or effects of a resident or non-resident
of the state, is that it partakes essentially of the nature and
character of a proceeding in personam and not of a
proceeding in rem. And if the defendant appears the action
proceeds in accordance with the practice governing
proceedings in personam. But where the defendant fails to
appear in the action, the proceeding is to be considered as
one in the nature of a proceeding in rem. And where the
court acts directly on the property, the title thereof being
charged by the court without the intervention of the party,
the proceeding unquestionably is one in rem in the fullest
meaning of the term.
"In attachment proceedings against a non-resident
defendant where personal service on him is lacking, it is
elementary that the court must obtain jurisdiction of the
property of the defendant. If no steps have been taken to
acquire jurisdiction of the defendants person, and he has
not appeared and answered or otherwise submitted himself
45
AGUSTIN, E.P.
2. BANCO ESPANOL-FILIPINO vs. PANCA

SUPREME COURT
Manila
Judicial Due Process Requisites

Engracio Palanca was indebted to El Banco and he had his
parcel of land as security to his debt. His debt amounted to
P218,294.10. His property is worth 75k more than what he
owe. Due to the failure of Engracio to make his payments,
El Banco executed an instrument to mortgage Engracios
property. Engracio however left for China and he never
returned til he died. Since Engracio is a non resident El
Banco has to notify Engracio about their intent to sue him
by means of publication using a newspaper. The lower
court further orderdd the clerk of court to furnish Engracio
a copy and that itd be sent to Amoy, China. The court
eventually granted El Banco petition to execute Engracios
property. 7 years thereafter, Vicente surfaced on behalf of
Engracio as his administrator to petition for the annulment
of the ruling. Vicente averred that there had been no due
process as Engracio never received the summons.
ISSUE: Whether or not due process was not observed.
HELD: The SC ruled against Palanca. The SC ruled that
the requisites for judicial due process had been met. The
requisites are;
1.
2.
3.
4.
There must be an impartial court or tribunal

clothed with judicial power to hear and decide the
matter before it.
Jurisdiction must be lawfully acquired over the
person of the defendant or over the property
subject of the proceedings.
The defendant must be given the opportunity to
be heard.
Judgment must be rendered only after lawful
hearing.
EN BANC
G.R. No. L-11390
March 26, 1918
EL BANCO ESPAOL-FILIPINO, plaintiff-appellant,

vs.
VICENTE PALANCA, administrator of the estate of
Engracio Palanca Tanquinyeng, defendant-appellant.
Aitken
and
DeSelms
Hartigan and Welch for appellee.
for
appellant.
STREET, J.:
This action was instituted upon March 31, 1908, by "El
Banco Espanol-Filipino" to foreclose a mortgage upon
various parcels of real property situated in the city of
Manila. The mortgage in question is dated June 16, 1906,
and was executed by the original defendant herein,
Engracio Palanca Tanquinyeng y Limquingco, as security
for a debt owing by him to the bank. Upon March 31, 1906,
the debt amounted to P218,294.10 and was drawing
interest at the rate of 8 per centum per annum, payable at
the end of each quarter. It appears that the parties to this
mortgage at that time estimated the value of the property in
question at P292,558, which was about P75,000 in excess
of the indebtedness. After the execution of this instrument
by the mortgagor, he returned to China which appears to
have been his native country; and he there died, upon
January 29, 1810, without again returning to the
Philippine Islands.
As the defendant was a nonresident at the time of the
institution of the present action, it was necessary for the
plaintiff in the foreclosure proceeding to give notice to the
defendant by publication pursuant to section 399 of the
Code of Civil Procedure. An order for publication was
accordingly obtained from the court, and publication was
made in due form in a newspaper of the city of Manila. At
the same time that the order of the court should deposit in
the post office in a stamped envelope a copy of the
summons and complaint directed to the defendant at his
last place of residence, to wit, the city of Amoy, in the
Empire of China. This order was made pursuant to the
following provision contained in section 399 of the Code of
Civil Procedure:
In case of publication, where the residence of a
nonresident or absent defendant is known, the
judge must direct a copy of the summons and
complaint to be forthwith deposited by the clerk in
the post-office, postage prepaid, directed to the
person to be served, at his place of residence
Whether the clerk complied with this order does not
affirmatively appear. There is, however, among the papers
pertaining to this case, an affidavit, dated April 4, 1908,
signed by Bernardo Chan y Garcia, an employee of the
attorneys of the bank, showing that upon that date he had
deposited in the Manila post-office a registered letter,
46
AGUSTIN, E.P.
addressed to Engracio Palanca Tanquinyeng, at Manila,

containing copies of the complaint, the plaintiff's affidavit,
the summons, and the order of the court directing
publication as aforesaid. It appears from the postmaster's
receipt that Bernardo probably used an envelope obtained
from the clerk's office, as the receipt purports to show that
the letter emanated from the office.
The word "jurisdiction," as applied to the faculty of

exercising judicial power, is used in several different,
though related, senses since it may have reference (1) to
the authority of the court to entertain a particular kind of
action or to administer a particular kind of relief, or it may
refer to the power of the court over the parties, or (2) over
the property which is the subject to the litigation.
The cause proceeded in usual course in the Court of First

Instance; and the defendant not having appeared,
judgment was, upon July 2, 1908, taken against him by
default. Upon July 3, 1908, a decision was rendered in
favor of the plaintiff. In this decision it was recited that
publication had been properly made in a periodical, but
nothing was said about this notice having been given mail.
The court, upon this occasion, found that the indebtedness
of the defendant amounted to P249,355. 32, with interest
from March 31, 1908. Accordingly it was ordered that the
defendant should, on or before July 6, 1908, deliver said
amount to the clerk of the court to be applied to the
satisfaction of the judgment, and it was declared that in
case of the failure of the defendant to satisfy the judgment
within such period, the mortgage property located in the
city of Manila should be exposed to public sale. The
payment contemplated in said order was never made; and
upon July 8, 1908, the court ordered the sale of the
property. The sale took place upon July 30, 1908, and the
property was bought in by the bank for the sum of
P110,200. Upon August 7, 1908, this sale was confirmed
by the court.
The sovereign authority which organizes a court determines

the nature and extent of its powers in general and thus
fixes its competency or jurisdiction with reference to the
actions which it may entertain and the relief it may grant.
About seven years after the confirmation of this sale, or to

the precise, upon June 25, 1915, a motion was made in
this cause by Vicente Palanca, as administrator of the
estate of the original defendant, Engracio Palanca
Tanquinyeng y Limquingco, wherein the applicant
requested the court to set aside the order of default of July
2, 1908, and the judgment rendered upon July 3, 1908,
and to vacate all the proceedings subsequent thereto. The
basis of this application, as set forth in the motion itself,
was that the order of default and the judgment rendered
thereon were void because the court had never acquired
jurisdiction over the defendant or over the subject of the
action.
At the hearing in the court below the application to vacate
the judgment was denied, and from this action of the court
Vicente Planca, as administrator of the estate of the
original defendant, has appealed. No other feature of the
case is here under consideration than such as related to
the action of the court upon said motion.
The case presents several questions of importance, which
will be discussed in what appears to be the sequence of
most convenient development. In the first part of this
opinion we shall, for the purpose of argument, assume that
the clerk of the Court of First Instance did not obey the
order of the court in the matter of mailing the papers which
he was directed to send to the defendant in Amoy; and in
this connection we shall consider, first, whether the court
acquired the necessary jurisdiction to enable it to proceed
with the foreclosure of the mortgage and, secondly,
whether those proceedings were conducted in such manner
as to constitute due process of law.
47
Jurisdiction over the person is acquired by the voluntary

appearance of a party in court and his submission to its
authority, or it is acquired by the coercive power of legal
process exerted over the person.
Jurisdiction over the property which is the subject of the
against all the world.
In the terminology of American law the action to foreclose a
mortgage is said to be a proceeding quasi in rem, by which
is expressed the idea that while it is not strictly speaking
an action in rem yet it partakes of that nature and is
substantially such. The expression "action in rem" is, in its
narrow application, used only with reference to certain
proceedings in courts of admiralty wherein the property
alone is treated as responsible for the claim or obligation
upon which the proceedings are based. The action quasi
rem differs from the true action in rem in the circumstance
that in the former an individual is named as defendant,
and the purpose of the proceeding is to subject his interest
therein to the obligation or lien burdening the property. All
proceedings having for their sole object the sale or other
disposition of the property of the defendant, whether by
attachment, foreclosure, or other form of remedy, are in a
general way thus designated. The judgment entered in
these proceedings is conclusive only between the parties.
In speaking of the proceeding to foreclose a mortgage the
author of a well known treaties, has said:
Though nominally against person, such suits are
to vindicate liens; they proceed upon seizure; they
treat property as primarily indebted; and, with the
qualification
above-mentioned,
they
are
AGUSTIN, E.P.
substantially property actions. In the civil law,

they are styled hypothecary actions, and their sole
object is the enforcement of the lien against the
res; in the common law, they would be different in
chancery did not treat the conditional conveyance
as a mere hypothecation, and the creditor's right
ass an equitable lien; so, in both, the suit is real
action so far as it is against property, and seeks
the judicial recognition of a property debt, and an
order for the sale of the res. (Waples, Proceedings
In Rem. sec. 607.)
It is true that in proceedings of this character, if the
defendant for whom publication is made appears, the
action becomes as to him a personal action and is
conducted as such. This, however, does not affect the
proposition that where the defendant fails to appear the
action is quasi in rem; and it should therefore be
considered with reference to the principles governing
actions in rem.
There is an instructive analogy between the foreclosure
proceeding and an action of attachment, concerning which
the Supreme Court of the United States has used the
following language:
If the defendant appears, the cause becomes
mainly a suit in personam, with the added
incident, that the property attached remains
liable, under the control of the court, to answer to
any demand which may be established against the
defendant by the final judgment of the court. But,
if there is no appearance of the defendant, and no
service of process on him, the case becomes, in its
essential nature, a proceeding in rem, the only
effect of which is to subject the property attached
to the payment of the defendant which the court
may find to be due to the plaintiff. (Cooper vs.
Reynolds, 10 Wall., 308.)
In an ordinary attachment proceeding, if the defendant is
not personally served, the preliminary seizure is to, be
attachment. (Roller vs. Holly, 176 U. S., 398, 405; 44 L.
essentially in rem.
Passing now to a consideration of the jurisdiction of the
Court of First Instance in a mortgage foreclosure, it is
evident that the court derives its authority to entertain the
action primarily from the statutes organizing the court. The
jurisdiction of the court, in this most general sense, over
the cause of action is obvious and requires no comment.
48
Jurisdiction over the person of the defendant, if acquired at

all in such an action, is obtained by the voluntary
submission of the defendant or by the personal service of
process upon him within the territory where the process is
valid. If, however, the defendant is a nonresident and,
remaining beyond the range of the personal process of the
court, refuses to come in voluntarily, the court never
acquires jurisdiction over the person at all. Here the
property itself is in fact the sole thing which is impleaded
and is the responsible object which is the subject of the
exercise of judicial power. It follows that the jurisdiction of
the court in such case is based exclusively on the power
which, under the law, it possesses over the property; and
any discussion relative to the jurisdiction of the court over
the person of the defendant is entirely apart from the case.
The jurisdiction of the court over the property, considered
as the exclusive object of such action, is evidently based
upon the following conditions and considerations, namely:
(1) that the property is located within the district; (2) that
the purpose of the litigation is to subject the property by
sale to an obligation fixed upon it by the mortgage; and (3)
that the court at a proper stage of the proceedings takes
the property into custody, if necessary, and expose it to
sale for the purpose of satisfying the mortgage debt. An
obvious corollary is that no other relief can be granted in
this proceeding than such as can be enforced against the
property.
We may then, from what has been stated, formulated the
following proposition relative to the foreclosure proceeding
against the property of a nonresident mortgagor who fails
to come in and submit himself personally to the
jurisdiction of the court: (I) That the jurisdiction of the
court is derived from the power which it possesses over the
property; (II) that jurisdiction over the person is not
acquired and is nonessential; (III) that the relief granted by
the court must be limited to such as can be enforced
against the property itself.
It is important that the bearing of these propositions be
clearly apprehended, for there are many expressions in the
American reports from which it might be inferred that the
court acquires personal jurisdiction over the person of the
defendant by publication and notice; but such is not the
case. In truth the proposition that jurisdiction over the
person of a nonresident cannot be acquired by publication
and notice was never clearly understood even in the
American courts until after the decision had been rendered
by the Supreme Court of the United States in the leading
case of Pennoyer vs. Neff (95 U. S. 714; 24 L. ed., 565). In
the light of that decision, and of other decisions which have
subsequently been rendered in that and other courts, the
proposition that jurisdiction over the person cannot be
thus acquired by publication and notice is no longer open
to question; and it is now fully established that a personal
judgment upon constructive or substituted service against
a nonresident who does not appear is wholly invalid. This
doctrine applies to all kinds of constructive or substituted
process, including service by publication and personal
service outside of the jurisdiction in which the judgment is
rendered; and the only exception seems to be found in the
case where the nonresident defendant has expressly or
impliedly consented to the mode of service. (Note to Raher
vs. Raher, 35 L. R. A. [N. S. ], 292; see also 50 L .R. A.,
585; 35 L. R. A. [N. S.], 312
AGUSTIN, E.P.
The idea upon which the decision in Pennoyer vs. Neff

(supra) proceeds is that the process from the tribunals of
one State cannot run into other States or countries and
that due process of law requires that the defendant shall be
brought under the power of the court by service of process
within the State, or by his voluntary appearance, in order
to authorize the court to pass upon the question of his
personal liability. The doctrine established by the Supreme
Court of the United States on this point, being based upon
the constitutional conception of due process of law, is
binding upon the courts of the Philippine Islands. Involved
in this decision is the principle that in proceedings in rem
or quasi in rem against a nonresident who is not served
personally within the state, and who does not appear, the
relief must be confined to the res, and the court cannot
lawfully render a personal judgment against him. (Dewey
vs. Des Moines, 173 U. S., 193; 43 L. ed., 665; Heidritter
vs. Elizabeth Oil Cloth Co., 112 U. S., 294; 28 L. ed., 729.)
Therefore in an action to foreclose a mortgage against a
nonresident, upon whom service has been effected
exclusively by publication, no personal judgment for the
deficiency can be entered. (Latta vs. Tutton, 122 Cal., 279;
Blumberg vs. Birch, 99 Cal., 416.)
It is suggested in the brief of the appellant that the
judgment entered in the court below offends against the
principle just stated and that this judgment is void because
the court in fact entered a personal judgment against the
absent debtor for the full amount of the indebtedness
secured by the mortgage. We do not so interpret the
judgment.
In a foreclosure proceeding against a nonresident owner it
is necessary for the court, as in all cases of foreclosure, to
ascertain the amount due, as prescribed in section 256 of
the Code of Civil Procedure, and to make an order requiring
the defendant to pay the money into court. This step is a
necessary precursor of the order of sale. In the present
case the judgment which was entered contains the
following words:
Because it is declared that the said defendant
Engracio Palanca Tanquinyeng y Limquingco, is
indebted in the amount of P249,355.32, plus the
interest, to the 'Banco Espanol-Filipino' . . .
therefore said appellant is ordered to deliver the
above amount etc., etc.
This is not the language of a personal judgment. Instead it
is clearly intended merely as a compliance with the
requirement that the amount due shall be ascertained and
that the evidence of this it may be observed that according
to the Code of Civil Procedure a personal judgment against
the debtor for the deficiency is not to be rendered until
after the property has been sold and the proceeds applied
to the mortgage debt. (sec. 260).
The conclusion upon this phase of the case is that
whatever may be the effect in other respects of the failure
of the clerk of the Court of First Instance to mail the proper
papers to the defendant in Amoy, China, such irregularity
could in no wise impair or defeat the jurisdiction of the
court, for in our opinion that jurisdiction rest upon a basis
much more secure than would be supplied by any form of
notice that could be given to a resident of a foreign country.
49
Before leaving this branch of the case, we wish to observe

that we are fully aware that many reported cases can be
cited in which it is assumed that the question of the
sufficiency of publication or notice in a case of this kind is
a question affecting the jurisdiction of the court, and the
court is sometimes said to acquire jurisdiction by virtue of
the publication. This phraseology was undoubtedly
originally adopted by the court because of the analogy
between service by the publication and personal service of
process upon the defendant; and, as has already been
suggested, prior to the decision of Pennoyer vs. Neff (supra)
the difference between the legal effects of the two forms of
service was obscure. It is accordingly not surprising that
the modes of expression which had already been molded
into legal tradition before that case was decided have been
brought down to the present day. But it is clear that the
legal principle here involved is not effected by the peculiar
language in which the courts have expounded their ideas.
We now proceed to a discussion of the question whether
the supposed irregularity in the proceedings was of such
gravity as to amount to a denial of that "due process of law"
which was secured by the Act of Congress in force in these
Islands at the time this mortgage was foreclosed. (Act of
July 1, 1902, sec. 5.) In dealing with questions involving
the application of the constitutional provisions relating to
due process of law the Supreme Court of the United States
has refrained from attempting to define with precision the
meaning of that expression, the reason being that the idea
expressed therein is applicable under so many diverse
conditions as to make any attempt ay precise definition
hazardous and unprofitable. As applied to a judicial
proceeding, however, it may be laid down with certainty
that the requirement of due process is satisfied if the
following conditions are present, namely; (1) There must be
a court or tribunal clothed with judicial power to hear and
determine the matter before it; (2) jurisdiction must be
lawfully acquired over the person of the defendant or over
the property which is the subject of the proceeding; (3) the
defendant must be given an opportunity to be heard; and
(4) judgment must be rendered upon lawful hearing.
Passing at once to the requisite that the defendant shall
have an opportunity to be heard, we observe that in a
foreclosure case some notification of the proceedings to the
nonresident owner, prescribing the time within which
appearance must be made, is everywhere recognized as
essential. To answer this necessity the statutes generally
provide for publication, and usually in addition thereto, for
the mailing of notice to the defendant, if his residence is
known. Though commonly called constructive, or
substituted service of process in any true sense. It is
merely a means provided by law whereby the owner may be
admonished that his property is the subject of judicial
proceedings and that it is incumbent upon him to take
such steps as he sees fit to protect it. In speaking of notice
of this character a distinguish master of constitutional law
has used the following language:
. . . if the owners are named in the proceedings,
and personal notice is provided for, it is rather
from tenderness to their interests, and in order to
make sure that the opportunity for a hearing shall
not be lost to them, than from any necessity that
the case shall assume that form. (Cooley on
Taxation [2d. ed.], 527, quoted in Leigh vs. Green,
193 U. S., 79, 80.)
AGUSTIN, E.P.
It will be observed that this mode of notification does not

involve any absolute assurance that the absent owner shall
thereby receive actual notice. The periodical containing the
publication may never in fact come to his hands, and the
chances that he should discover the notice may often be
very slight. Even where notice is sent by mail the
probability of his receiving it, though much increased, is
dependent upon the correctness of the address to which it
is forwarded as well as upon the regularity and security of
the mail service. It will be noted, furthermore, that the
provision of our law relative to the mailing of notice does
not absolutely require the mailing of notice unconditionally
and in every event, but only in the case where the
defendant's residence is known. In the light of all these
facts, it is evident that actual notice to the defendant in
cases of this kind is not, under the law, to be considered
absolutely necessary.
The idea upon which the law proceeds in recognizing the
efficacy of a means of notification which may fall short of
actual notice is apparently this: Property is always
assumed to be in the possession of its owner, in person or
by agent; and he may be safely held, under certain
conditions, to be affected with knowledge that proceedings
have been instituted for its condemnation and sale.
It is the duty of the owner of real estate, who is a
nonresident, to take measures that in some way
he shall be represented when his property is
called into requisition, and if he fails to do this,
and fails to get notice by the ordinary publications
which have usually been required in such cases,
it is his misfortune, and he must abide the
consequences. (6 R. C. L., sec. 445 [p. 450]).
It has been well said by an American court:
If property of a nonresident cannot be reached by
legal process upon the constructive notice, then
our statutes were passed in vain, and are mere
empty legislative declarations, without either
force, or meaning; for if the person is not within
the jurisdiction of the court, no personal
judgment can be rendered, and if the judgment
cannot operate upon the property, then no
effective judgment at all can be rendered, so that
the result would be that the courts would be
powerless to assist a citizen against a
nonresident. Such a result would be a deplorable
one. (Quarl vs. Abbett, 102 Ind., 233; 52 Am.
Rep., 662, 667.)
It is, of course universally recognized that the statutory
provisions relative to publication or other form of notice
against a nonresident owner should be complied with; and
in respect to the publication of notice in the newspaper it
may be stated that strict compliance with the requirements
of the law has been held to be essential. In Guaranty Trust
etc. Co. vs. Green Cove etc., Railroad Co. (139 U. S., 137,
138), it was held that where newspaper publication was
made for 19 weeks, when the statute required 20, the
publication was insufficient.
With respect to the provisions of our own statute, relative
to the sending of notice by mail, the requirement is that the
judge shall direct that the notice be deposited in the mail
50
by the clerk of the court, and it is not in terms declared

that the notice must be deposited in the mail. We consider
this to be of some significance; and it seems to us that,
having due regard to the principles upon which the giving
of such notice is required, the absent owner of the
mortgaged property must, so far as the due process of law
is concerned, take the risk incident to the possible failure
of the clerk to perform his duty, somewhat as he takes the
risk that the mail clerk or the mail carrier might possibly
lose or destroy the parcel or envelope containing the notice
before it should reach its destination and be delivered to
him. This idea seems to be strengthened by the
consideration that placing upon the clerk the duty of
sending notice by mail, the performance of that act is put
effectually beyond the control of the plaintiff in the
litigation. At any rate it is obvious that so much of section
399 of the Code of Civil Procedure as relates to the sending
of notice by mail was complied with when the court made
the order. The question as to what may be the
consequences of the failure of the record to show the proof
of compliance with that requirement will be discussed by
us further on.
The observations which have just been made lead to the
conclusion that the failure of the clerk to mail the notice, if
in fact he did so fail in his duty, is not such an irregularity,
as amounts to a denial of due process of law; and hence in
our opinion that irregularity, if proved, would not avoid the
judgment in this case. Notice was given by publication in a
newspaper and this is the only form of notice which the law
unconditionally requires. This in our opinion is all that was
absolutely necessary to sustain the proceedings.
It will be observed that in considering the effect of this
irregularity, it makes a difference whether it be viewed as a
question involving jurisdiction or as a question involving
due process of law. In the matter of jurisdiction there can
be no distinction between the much and the little. The
court either has jurisdiction or it has not; and if the
requirement as to the mailing of notice should be
considered as a step antecedent to the acquiring of
jurisdiction, there could be no escape from the conclusion
that the failure to take that step was fatal to the validity of
the judgment. In the application of the idea of due process
of law, on the other hand, it is clearly unnecessary to be so
rigorous. The jurisdiction being once established, all that
due process of law thereafter requires is an opportunity for
the defendant to be heard; and as publication was duly
made in the newspaper, it would seem highly unreasonable
to hold that failure to mail the notice was fatal. We think
that in applying the requirement of due process of law, it is
permissible to reflect upon the purposes of the provision
which is supposed to have been violated and the principle
underlying the exercise of judicial power in these
proceedings. Judge in the light of these conceptions, we
think that the provision of Act of Congress declaring that
no person shall be deprived of his property without due
process of law has not been infringed.
In the progress of this discussion we have stated the two
conclusions; (1) that the failure of the clerk to send the
notice to the defendant by mail did not destroy the
jurisdiction of the court and (2) that such irregularity did
not infringe the requirement of due process of law. As a
consequence of these conclusions the irregularity in
question is in some measure shorn of its potency. It is still
necessary, however, to consider its effect considered as a
AGUSTIN, E.P.
simple irregularity of procedure; and it would be idle to

pretend that even in this aspect the irregularity is not grave
enough. From this point of view, however, it is obvious that
any motion to vacate the judgment on the ground of the
irregularity in question must fail unless it shows that the
defendant was prejudiced by that irregularity. The least,
therefore, that can be required of the proponent of such a
motion is to show that he had a good defense against the
action to foreclose the mortgage. Nothing of the kind is,
however, shown either in the motion or in the affidavit
which accompanies the motion.
An application to open or vacate a judgment because of an
irregularity or defect in the proceedings is usually required
to be supported by an affidavit showing the grounds on
which the relief is sought, and in addition to this showing
also a meritorious defense to the action. It is held that a
general statement that a party has a good defense to the
action is insufficient. The necessary facts must be averred.
Of course if a judgment is void upon its face a showing of
the existence of a meritorious defense is not necessary. (10
R. C. L., 718.)
The lapse of time is also a circumstance deeply affecting
this aspect of the case. In this connection we quote the
following passage from the encyclopedic treatise now in
course of publication:
Where, however, the judgment is not void on its
face, and may therefore be enforced if permitted to
stand on the record, courts in many instances
refuse to exercise their quasi equitable powers to
vacate a judgement after the lapse of the term ay
which it was entered, except in clear cases, to
promote the ends of justice, and where it appears
that the party making the application is himself
without fault and has acted in good faith and with
ordinary diligence. Laches on the part of the
applicant, if unexplained, is deemed sufficient
ground for refusing the relief to which he might
otherwise be entitled. Something is due to the
finality of judgments, and acquiescence or
unnecessary delay is fatal to motions of this
character, since courts are always reluctant to
interfere with judgments, and especially where
they have been executed or satisfied. The moving
party has the burden of showing diligence, and
unless it is shown affirmatively the court will not
ordinarily exercise its discretion in his favor. (15
R. C. L., 694, 695.)
It is stated in the affidavit that the defendant, Engracio
Palanca Tanquinyeng y Limquingco, died January 29,
1910. The mortgage under which the property was sold
was executed far back in 1906; and the proceedings in the
foreclosure were closed by the order of court confirming the
sale dated August 7, 1908. It passes the rational bounds of
human credulity to suppose that a man who had placed a
mortgage upon property worth nearly P300,000 and had
then gone away from the scene of his life activities to end
his days in the city of Amoy, China, should have long
remained in ignorance of the fact that the mortgage had
been foreclosed and the property sold, even supposing that
he had no knowledge of those proceedings while they were
being conducted. It is more in keeping with the ordinary
course of things that he should have acquired information
as to what was transpiring in his affairs at Manila; and
51
upon the basis of this rational assumption we are

authorized, in the absence of proof to the contrary, to
presume that he did have, or soon acquired, information as
to the sale of his property.
The Code of Civil Procedure, indeed, expressly declares that
there is a presumption that things have happened
according to the ordinary habits of life (sec. 334 [26]); and
we cannot conceive of a situation more appropriate than
this for applying the presumption thus defined by the
lawgiver. In support of this presumption, as applied to the
present case, it is permissible to consider the probability
that the defendant may have received actual notice of these
proceedings from the unofficial notice addressed to him in
Manila which was mailed by an employee of the bank's
attorneys. Adopting almost the exact words used by the
Supreme Court of the United States in Grannis vs. Ordeans
(234 U. S., 385; 58 L. ed., 1363), we may say that in view of
the well-known skill of postal officials and employees in
making proper delivery of letters defectively addressed, we
think the presumption is clear and strong that this notice
reached the defendant, there being no proof that it was
ever returned by the postal officials as undelivered. And if it
was delivered in Manila, instead of being forwarded to
Amoy, China, there is a probability that the recipient was a
person sufficiently interested in his affairs to send it or
communicate its contents to him.
Of course if the jurisdiction of the court or the sufficiency
of the process of law depended upon the mailing of the
notice by the clerk, the reflections in which we are now
indulging would be idle and frivolous; but the
considerations mentioned are introduced in order to show
the propriety of applying to this situation the legal
presumption to which allusion has been made. Upon that
presumption, supported by the circumstances of this case,
,we do not hesitate to found the conclusion that the
defendant voluntarily abandoned all thought of saving his
property from the obligation which he had placed upon it;
that knowledge of the proceedings should be imputed to
him; and that he acquiesced in the consequences of those
proceedings after they had been accomplished. Under these
circumstances it is clear that the merit of this motion is, as
we have already stated, adversely affected in a high degree
by the delay in asking for relief. Nor is it an adequate reply
to say that the proponent of this motion is an
administrator who only qualified a few months before this
motion was made. No disability on the part of the
defendant himself existed from the time when the
foreclosure was effected until his death; and we believe that
the delay in the appointment of the administrator and
institution of this action is a circumstance which is
imputable to the parties in interest whoever they may have
been. Of course if the minor heirs had instituted an action
in their own right to recover the property, it would have
been different.
It is, however, argued that the defendant has suffered
prejudice by reason of the fact that the bank became the
purchaser of the property at the foreclosure sale for a price
greatly below that which had been agreed upon in the
mortgage as the upset price of the property. In this
connection, it appears that in article nine of the mortgage
which was the subject of this foreclosure, as amended by
the notarial document of July 19, 1906, the parties to this
mortgage made a stipulation to the effect that the value
therein placed upon the mortgaged properties should serve
AGUSTIN, E.P.
as a basis of sale in case the debt should remain unpaid

and the bank should proceed to a foreclosure. The upset
price stated in that stipulation for all the parcels involved
in this foreclosure was P286,000. It is said in behalf of the
appellant that when the bank bought in the property for
the sum of P110,200 it violated that stipulation.
It has been held by this court that a clause in a mortgage
providing for a tipo, or upset price, does not prevent a
foreclosure, nor affect the validity of a sale made in the
foreclosure proceedings. (Yangco vs. Cruz Herrera and Wy
Piaco, 11 Phil. Rep., 402; Banco-Espaol Filipino vs.
Donaldson, Sim and Co., 5 Phil. Rep., 418.) In both the
cases here cited the property was purchased at the
foreclosure sale, not by the creditor or mortgagee, but by a
third party. Whether the same rule should be applied in a
case where the mortgagee himself becomes the purchaser
has apparently not been decided by this court in any
reported decision, and this question need not here be
considered, since it is evident that if any liability was
incurred by the bank by purchasing for a price below that
fixed in the stipulation, its liability was a personal liability
derived from the contract of mortgage; and as we have
already demonstrated such a liability could not be the
subject of adjudication in an action where the court had no
jurisdiction over the person of the defendant. If the plaintiff
bank became liable to account for the difference between
the upset price and the price at which in bought in the
property, that liability remains unaffected by the
disposition which the court made of this case; and the fact
that the bank may have violated such an obligation can in
no wise affect the validity of the judgment entered in the
Court of First Instance.
In connection with the entire failure of the motion to show
either a meritorious defense to the action or that the
defendant had suffered any prejudice of which the law can
take notice, we may be permitted to add that in our opinion
a motion of this kind, which proposes to unsettle judicial
proceedings long ago closed, can not be considered with
favor, unless based upon grounds which appeal to the
conscience of the court. Public policy requires that judicial
proceedings be upheld. The maximum here applicable is
non quieta movere. As was once said by Judge Brewer,
afterwards a member of the Supreme Court of the United
States:
Public policy requires that judicial proceedings be
upheld, and that titles obtained in those
proceedings be safe from the ruthless hand of
collateral attack. If technical defects are adjudged
potent to destroy such titles, a judicial sale will
never realize that value of the property, for no
prudent man will risk his money in bidding for
and buying that title which he has reason to fear
may years thereafter be swept away through some
occult and not readily discoverable defect. (Martin
vs. Pond, 30 Fed., 15.)
In the case where that language was used an attempt was
made to annul certain foreclosure proceedings on the
ground that the affidavit upon which the order of
publication was based erroneously stated that the State of
Kansas, when he was in fact residing in another State. It
was held that this mistake did not affect the validity of the
proceedings.
52
In the preceding discussion we have assumed that the

clerk failed to send the notice by post as required by the
order of the court. We now proceed to consider whether
this is a proper assumption; and the proposition which we
propose to establish is that there is a legal presumption
that the clerk performed his duty as the ministerial officer
of the court, which presumption is not overcome by any
other facts appearing in the cause.
In subsection 14 of section 334 of the Code of Civil
Procedure it is declared that there is a presumption "that
official duty has been regularly performed;" and in
subsection 18 it is declared that there is a presumption
"that the ordinary course of business has been followed."
These presumptions are of course in no sense novelties, as
they express ideas which have always been recognized.
Omnia presumuntur rite et solemniter esse acta donec
probetur in contrarium. There is therefore clearly a legal
presumption that the clerk performed his duty about
mailing this notice; and we think that strong
considerations of policy require that this presumption
should be allowed to operate with full force under the
circumstances of this case. A party to an action has no
control over the clerk of the court; and has no right to
meddle unduly with the business of the clerk in the
performance of his duties. Having no control over this
officer, the litigant must depend upon the court to see that
the duties imposed on the clerk are performed.
Other considerations no less potent contribute to
strengthen the conclusion just stated. There is no principle
of law better settled than that after jurisdiction has once
been required, every act of a court of general jurisdiction
shall be presumed to have been rightly done. This rule is
applied to every judgment or decree rendered in the various
stages of the proceedings from their initiation to their
completion (Voorhees vs. United States Bank, 10 Pet., 314;
35 U. S., 449); and if the record is silent with respect to
any fact which must have been established before the court
could have rightly acted, it will be presumed that such fact
was properly brought to its knowledge. (The Lessee of
Grignon vs. Astor, 2 How., 319; 11 L. ed., 283.)
In making the order of sale [of the real state of a
decedent] the court are presumed to have
adjudged every question necessary to justify such
order or decree, viz: The death of the owners; that
the petitioners were his administrators; that the
personal estate was insufficient to pay the debts
of the deceased; that the private acts of Assembly,
as to the manner of sale, were within the
constitutional power of the Legislature, and that
all the provisions of the law as to notices which
are directory to the administrators have been
complied with. . . . The court is not bound to enter
upon the record the evidence on which any fact
was decided. (Florentine vs. Barton, 2 Wall., 210;
17 L. ed., 785.) Especially does all this apply after
long lapse of time.
Applegate vs. Lexington and Carter County Mining Co. (117
U. S., 255) contains an instructive discussion in a case
analogous to that which is now before us. It there appeared
that in order to foreclose a mortgage in the State of
Kentucky against a nonresident debtor it was necessary
that publication should be made in a newspaper for a
specified period of time, also be posted at the front door of
AGUSTIN, E.P.
the court house and be published on some Sunday,

immediately after divine service, in such church as the
court should direct. In a certain action judgment had been
entered against a nonresident, after publication in
pursuance of these provisions. Many years later the validity
of the proceedings was called in question in another action.
It was proved from the files of an ancient periodical that
publication had been made in its columns as required by
law; but no proof was offered to show the publication of the
order at the church, or the posting of it at the front door of
the court-house. It was insisted by one of the parties that
the judgment of the court was void for lack of jurisdiction.
But the Supreme Court of the United States said:
The court which made the decree . . . was a court
of
general
jurisdiction.
Therefore
every
presumption not inconsistent with the record is to
be indulged in favor of its jurisdiction. . . . It is to
be presumed that the court before making its
decree took care of to see that its order for
constructive service, on which its right to make
the decree depended, had been obeyed.
It is true that in this case the former judgment was the
subject of collateral , or indirect attack, while in the case at
bar the motion to vacate the judgment is direct proceeding
for relief against it. The same general presumption,
however, is indulged in favor of the judgment of a court of
general jurisdiction, whether it is the subject of direct or
indirect attack the only difference being that in case of
indirect attack the judgment is conclusively presumed to
be valid unless the record affirmatively shows it to be void,
while in case of direct attack the presumption in favor of its
validity may in certain cases be overcome by proof extrinsic
to the record.
The presumption that the clerk performed his duty and
that the court made its decree with the knowledge that the
requirements of law had been complied with appear to be
amply sufficient to support the conclusion that the notice
was sent by the clerk as required by the order. It is true
that there ought to be found among the papers on file in
this cause an affidavit, as required by section 400 of the
Code of Civil Procedure, showing that the order was in fact
so sent by the clerk; and no such affidavit appears. The
record is therefore silent where it ought to speak. But the
very purpose of the law in recognizing these presumptions
is to enable the court to sustain a prior judgment in the
face of such an omission. If we were to hold that the
judgment in this case is void because the proper affidavit is
not present in the file of papers which we call the record,
the result would be that in the future every title in the
Islands resting upon a judgment like that now before us
would depend, for its continued security, upon the
presence of such affidavit among the papers and would be
liable at any moment to be destroyed by the disappearance
of that piece of paper. We think that no court, with a
proper regard for the security of judicial proceedings and
for the interests which have by law been confided to the
courts, would incline to favor such a conclusion. In our
opinion the proper course in a case of this kind is to hold
that the legal presumption that the clerk performed his
duty still maintains notwithstanding the absence from the
record of the proper proof of that fact.
In this connection it is important to bear in mind that
under the practice prevailing in the Philippine Islands the
53
word "record" is used in a loose and broad sense, as

indicating the collective mass of papers which contain the
history of all the successive steps taken in a case and
which are finally deposited in the archives of the clerk's
office as a memorial of the litigation. It is a matter of
general information that no judgment roll, or book of final
record, is commonly kept in our courts for the purpose of
recording the pleadings and principal proceedings in
actions which have been terminated; and in particular, no
such record is kept in the Court of First Instance of the city
of Manila. There is, indeed, a section of the Code of Civil
Procedure which directs that such a book of final record
shall be kept; but this provision has, as a matter of
common knowledge, been generally ignored. The result is
that in the present case we do not have the assistance of
the recitals of such a record to enable us to pass upon the
validity of this judgment and as already stated the question
must be determined by examining the papers contained in
the entire file.
But it is insisted by counsel for this motion that the
affidavit of Bernardo Chan y Garcia showing that upon
April 4, 1908, he sent a notification through the mail
addressed to the defendant at Manila, Philippine Islands,
should be accepted as affirmative proof that the clerk of the
court failed in his duty and that, instead of himself sending
the requisite notice through the mail, he relied upon
Bernardo to send it for him. We do not think that this is by
any means a necessary inference. Of course if it had
affirmatively appeared that the clerk himself had attempted
to comply with this order and had directed the notification
to Manila when he should have directed it to Amoy, this
would be conclusive that he had failed to comply with the
exact terms of the order; but such is not this case. That the
clerk of the attorneys for the plaintiff erroneously sent a
notification to the defendant at a mistaken address affords
in our opinion very slight basis for supposing that the clerk
may not have sent notice to the right address.
There is undoubtedly good authority to support the
position that when the record states the evidence or makes
an averment with reference to a jurisdictional fact, it will
not be presumed that there was other or different evidence
respecting the fact, or that the fact was otherwise than
stated. If, to give an illustration, it appears from the return
of the officer that the summons was served at a particular
place or in a particular manner, it will not be presumed
that service was also made at another place or in a
different manner; or if it appears that service was made
upon a person other than the defendant, it will not be
presumed, in the silence of the record, that it was made
upon the defendant also (Galpin vs. Page, 18 Wall., 350,
366; Settlemier vs. Sullivan, 97 U. S., 444, 449). While we
believe that these propositions are entirely correct as
applied to the case where the person making the return is
the officer who is by law required to make the return, we do
not think that it is properly applicable where, as in the
present case, the affidavit was made by a person who, so
far as the provisions of law are concerned, was a mere
intermeddler.
The last question of importance which we propose to
consider is whether a motion in the cause is admissible as
a proceeding to obtain relief in such a case as this. If the
motion prevails the judgment of July 2, 1908, and all
subsequent proceedings will be set aside, and the litigation
will be renewed, proceeding again from the date mentioned
AGUSTIN, E.P.
as if the progress of the action had not been interrupted.

The proponent of the motion does not ask the favor of being
permitted to interpose a defense. His purpose is merely to
annul the effective judgment of the court, to the end that
the litigation may again resume its regular course.
There is only one section of the Code of Civil Procedure
which expressly recognizes the authority of a Court of First
Instance to set aside a final judgment and permit a renewal
of the litigation in the same cause. This is as follows:
SEC. 113. Upon such terms as may be just the
court may relieve a party or legal representative
from the judgment, order, or other proceeding
taken against him through his mistake,
inadvertence, surprise, or excusable neglect;
Provided, That application thereof be made within
a reasonable time, but in no case exceeding six
months after such judgment, order, or proceeding
was taken.
An additional remedy by petition to the Supreme Court is
supplied by section 513 of the same Code. The first
paragraph of this section, in so far as pertinent to this
discussion, provides as follows:
When a judgment is rendered by a Court of First
Instance upon default, and a party thereto is
unjustly deprived of a hearing by fraud, accident,
mistake or excusable negligence, and the Court of
First Instance which rendered the judgment has
finally adjourned so that no adequate remedy
exists in that court, the party so deprived of a
hearing may present his petition to the Supreme
Court within sixty days after he first learns of the
rendition of such judgment, and not thereafter,
setting forth the facts and praying to have
judgment set aside. . . .
It is evident that the proceeding contemplated in this
section is intended to supplement the remedy provided by
section 113; and we believe the conclusion irresistible that
there is no other means recognized by law whereby a
defeated party can, by a proceeding in the same cause,
procure a judgment to be set aside, with a view to the
renewal of the litigation.
The Code of Civil Procedure purports to be a complete
system of practice in civil causes, and it contains
provisions describing with much fullness the various steps
to be taken in the conduct of such proceedings. To this end
it defines with precision the method of beginning,
conducting, and concluding the civil action of whatever
species; and by section 795 of the same Code it is declared
that the procedure in all civil action shall be in accordance
with the provisions of this Code. We are therefore of the
opinion that the remedies prescribed in sections 113 and
513 are exclusive of all others, so far as relates to the
opening and continuation of a litigation which has been
once concluded.
The motion in the present case does not conform to the
requirements of either of these provisions; and the
consequence is that in our opinion the action of the Court
of First Instance in dismissing the motion was proper.
54
If the question were admittedly one relating merely to an

irregularity of procedure, we cannot suppose that this
proceeding would have taken the form of a motion in the
cause, since it is clear that, if based on such an error, the
came to late for relief in the Court of First Instance. But as
we have already seen, the motion attacks the judgment of
the court as void for want of jurisdiction over the
defendant. The idea underlying the motion therefore is that
inasmuch as the judgment is a nullity it can be attacked in
any way and at any time. If the judgment were in fact void
upon its face, that is, if it were shown to be a nullity by
virtue of its own recitals, there might possibly be something
in this. Where a judgment or judicial order is void in this
sense it may be said to be a lawless thing, which can be
treated as an outlaw and slain at sight, or ignored wherever
and whenever it exhibits its head.
But the judgment in question is not void in any such
sense. It is entirely regular in form, and the alleged defect
is one which is not apparent upon its face. It follows that
even if the judgment could be shown to be void for want of
jurisdiction, or for lack of due process of law, the party
aggrieved thereby is bound to resort to some appropriate
proceeding to obtain relief. Under accepted principles of
law and practice, long recognized in American courts, a
proper remedy in such case, after the time for appeal or
review has passed, is for the aggrieved party to bring an
action to enjoin the judgment, if not already carried into
effect; or if the property has already been disposed of he
may institute suit to recover it. In every situation of this
character an appropriate remedy is at hand; and if property
has been taken without due process, the law concedes due
process to recover it. We accordingly old that, assuming the
judgment to have been void as alleged by the proponent of
this motion, the proper remedy was by an original
proceeding and not by motion in the cause. As we have
already seen our Code of Civil Procedure defines the
conditions under which relief against a judgment may be
productive of conclusion for this court to recognize such a
proceeding as proper under conditions different from those
defined by law. Upon the point of procedure here involved,
we refer to the case of People vs. Harrison (84 Cal., 607)
wherein it was held that a motion will not lie to vacate a
judgment after the lapse of the time limited by statute if the
judgment is not void on its face; and in all cases, after the
lapse of the time limited by statute if the judgment is not
void on its face; and all cases, after the lapse of such time,
when an attempt is made to vacate the judgment by a
proceeding in court for that purpose an action regularly
brought is preferable, and should be required. It will be
noted taken verbatim from the California Code (sec. 473).
The conclusions stated in this opinion indicate that the
judgment appealed from is without error, and the same is
accordingly affirmed, with costs. So ordered.
Arellano, C.J., Torres, Carson, and Avancea, JJ., concur.
Separate Opinions
MALCOLM, J., dissenting:
AGUSTIN, E.P.
I dissent. It will not make me long to state my reasons. An

immutable attribute the fundamental idea of due
process of law is that no man shall be condemned in his
person or property without notice and an opportunity of
being heard in his defense. Protection of the parties
demands a strict and an exact compliance with this
constitutional provision in our organic law and of the
statutory provisions in amplification. Literally hundreds of
precedents could be cited in support of these axiomatic
principles. Where as in the instant case the defendant
received no notice and had no opportunity to be heard,
certainly we cannot say that there is due process of law.
Resultantly, "A judgment which is void upon its face, and
which requires only an inspection of the judgment roll to
demonstrate its want of vitality is a dead limb upon the
judicial tree, which should be lopped off, if the power so to
do exists. It can bear no fruit to the plaintiff, but is a
constant menace to the defendant." (Mills vs. Dickons, 6
Rich [S. C.], 487.)
55
AGUSTIN, E.P.
3. QUASHA vs. JUAN

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-49140 November 19, 1982
QUASHA ASPERILLA ANCHETA VALMONTE PEA &
MARCOS, petitioner,
vs.
THE HONORABLE CELESTINO P. JUAN, FILIPINAS
CARRIERS, INC., represented by its President,
FEDERICO TABORA, JR., APOLLO KOKIN TRADING
CO., LTD., et al., respondents.
Quasha, Asperilla, Ancheta, Valmonte, Pea and Marcos
Law Offices for petitioner.
Antonio V. Raquiza & Assoc. for respondent Eugene A. Tan.
DE CASTRO, J.:
In this petition for certiorari and prohibition with
preliminary injunction, petitioner seeks the annulment of
the order of respondent Judge of the Court of First
Instance of Manila in Civil Case No. 105048 dated August
25, 1978 which approved the sale of the subject cargo and
prays instead that the writ of preliminary attachment over
the same property issued by Hon. Gregorio Pineda of the
Court of First Instance of Rizal in Civil Case No. 28710 be
allowed to remain in force.
It appears that on October 22, 1976, respondent Filipinas
Carriers, hereinafter referred to as Filcar, filed a complaint
for sum of money, enforcement of lien and damages with
the Court of First Instance of Manila, and the same was
assigned to Branch X, which was presided by respondent
Judge, against AB Charles Thorburn & Co., through its
receiver Sjoegren and Winstrand; Estero Shipping and
Trading; Bank of Melli of Iran, Jeddah Branch; Perstorp
AB; Skogshgarnas Industries; Ekman and Company AB;
and Abdullah Baroom. In the complaint which was
docketed as Civil Case No. 105048, Filcar alleged that it is
the disponent owner of a vessel, MV San Vicente, which
was duly registered with the Republic of the Philippines;
that on April 2, 1976, defendant Carles Thorburn & Co.
chartered said vessel by time charter for two or three
months for a voyage from Sweden to Jeddah, Saudi Arabia
at three thousand two hundred US dollars (US $3,200.00)
a day, that Abdullah Baroom was impleaded as defendant
for being the agent of Charles Thorburn & Co. at Jeddah
and Sjoegren and Winstrand of Sweden for being the
receiver of Charles Thorburn & Co.; that the vessel left
Sweden with construction materials as cargoes belonging
to the following shippers and consignees, namely,
defendants Bank of Melli of Iran, Jeddah Branch; the
National Commercial Bank, Jeddah Branch; Perstorp AB of
Perstorp, Sweden; Skogshgarnas Industries of Sweden;
Ekman and Company of Sweden; that after the second
month, Charles Thorburn failed to pay the daily hire, that
56
the vessel has been in Jeddah since May 19, 1976 and is
now in international waters; that in view of Thorburn's
failure to pay the charter hire, it had struck a lien through
the vessel's captain; that the charter party has expired but
the vessel has not yet discharged the cargoes due to
inadequate port facilities and failure of the shippers,
consignees and charterer to pay the charter hire; that
Filcar demanded from Charles Thorburn the payment of
the charter hire but Thorburn failed to pay and instead
declared bankruptcy and is now under receivership in
Sweden; that on demand, Baroom, the agent of Thorburn
in Jeddah, and the consignees and shippers refused to pay;
that consequently, Filcar was forced to exercise its lien on
the cargoes consistent with Clause 18 of the Charter Party,
notice of which was sent to defendants. The plaintiff thus
prayed, among others, that the defendants pay the daily
charter hire from the time they were in arrears until
payment is made and that the Court allow the sale of the
cargoes to satisfy its claims.
On November 25, 1976, Sierra Madre Wood Industries,
Inc., hereinafter called Sierra Madre, the alleged owner,
end-user and operator of MV San Vicente filed a motion to
intervene in the Court of First Instance of Manila (Civil
Case No. 105048) for the purpose of enforcing its lien over
the cargo, claiming that it had chartered the vessel to
Filcar for six months renewable every six months at agreed
charter hire fee (US $825,000.00 per year). Respondent
Judge allowed the intervention of Sierra Madre as plaintiffintervenor.
On December 2, 1976, Filcar filed an extra-parte motion to
sell the goods subject of lien, alleging among others, that
the MV San Vicente had arrived in the Philippines, and was
due for dry-docking and needed urgent repairs; and that
the goods subject of its lien were in danger of deteriorating
and losing their market value and if the goods were not
sold immediately, the plaintiff would have to pay a
staggering amount for warehousing so that the value of the
goods would not even be enough to pay for warehousing
expenses.
Thereafter, respondent Judge conducted hearings in Civil
Case No. 105048 and an ocular inspection of the vessel. On
April 18, 1977, respondent Judge, convinced that the
vessel as well as the cargoes were in a very bad condition,
issued an order, the dispositive portion of which reads:
WHEREFORE, in view of all the above
and due to the condition of the vessel
and/or its cargo, while we are not
convinced as asserted that Section 17,
Rule 14 and 15 of the Rules of Court, do
not apply, for we still believe that one of
the four modes of service must at least
be observed, yet on the ground of
extreme necessity, this Court believes
that somehow, somebody must act
boldly in order to protect the interest of
parties and of the owner of the vessel
which is believed to be the government of
the Philippines. On the ground of
extreme necessity and partly by virtue of
the provisions of Rule 57, Section 1 1,
the cargo on board the MV San Vicente,
is ordered sold privately, so that the
vessel may immediately be sent for
AGUSTIN, E.P.
drydock, subject
conditions:
to
the
following
l. That the negotiations for the sale of the

cargo shall be the sole responsibility of
plaintiff Filcar subject to the supervision
by this Court and the intervention of
plaintiff-intervenor, the Sierra Madre
Wood Industries, Inc.;
2. That the Court and the plaintiffintervenor be fully informed regarding
the progress of the negotiations and that
the sale shall not be finalized without
first securing the approval of this Court
is to the selling price;
3. The proceeds of the sale shall be
deposited with a banking institution as
approved by this Court and shall be
disposed of only upon order of this
Court, subject to the first lien of plaintiffintervenor; and
4. Defendant AB Charles Thorburn &
Co., etc. shall be notified of the Order of
this Court together with a copy of the
amended complaint and the complaint in
intervention, thru the Department of
Foreign Affairs, and the Philippine
Embassy at Jeddah, Saudi Arabia. Proof
of Service shall be submitted to this
Court. After such time afforded the
defendant, in order to enable them to
answer or appear in this Court or make
any claim whatsoever, and still they fail
to make any manifestation, hearing of
this case shall resume regarding the
final disposition of the proceeds to all
concerned.
On June 27, 1977, respondent Judge approved tentatively
the sale of the cargo to Bengzon's Industries. This Order
was followed by another dated July 19, 1977, approving
the Deed of Absolute Sale of the cargo. 1
On August 15, 1977, petitioner law firm filed with
respondent Judge a special appearance for defendant
Ahmed Baroom contesting the Court's jurisdiction over
Baroom's person and property and a Motion to Dismiss on
the ground that the Court had not acquired jurisdiction
over Baroom's 'person or property aboard the MV San
Vicente. 2
On August 29, 1977, respondent Judge issued an Order
directing petitioner law firm to show on or before
September 20, 1977 a written authorization signed by its
client, Baroom, "since the latter is a foreigner". 3
On November 15, 1977, petitioner, as Baroom's counsel,
filed an answer with compulsory counterclaim, claiming
that defendant Baroom is not an agent of Charles Thorburn
since the cargoes belong to him, and denying the validity of
plaintiff's lien over the cargo. Petitioner reiterates the
defense that plaintiff's action being in personam involving
57
defendant who is not a resident within the territorial

jurisdiction of the Court, and there is no showing in the
records that the provisions of Section 17, Rule 14 in
relation to Section 1, Rule 57, of the Rules of Court have
been complied with to convert the action in rem, the Court
had no jurisdiction over the case. Baroom, through
petitioner, prayed that plaintiff be directed to deliver the
cargoes to Jeddah, pay damages corresponding to the full
value of the goods and to the lost income and profits he
could have realized had plaintiff delivered the cargo to him.
Baroom, likewise, filed a cross-claim against Sierra Madre,
plaintiff-intervenor.
On January 23, 1978, petitioner filed with respondent
Judge a manifestation and motion that it be "allowed to
withdraw from this case and charging lien be recorded
against the properties of Mr. Baroom now aboard MV San
Vicente for unpaid professional fees and reimbursement
expenses. " 4
Thereafter, on February 17, 1978, petitioner filed before the
Court of First Instance of Rizal a complaint with a prayer
for a writ of preliminary attachment for the recovery of
professional fees and reimbursement of expenses against
Baroom whom it alleged to have represented in Civil Case
No. 105048, CFI, Manila. The case was docketed as Civil
Case No. 28710 and the same was assigned to Branch XXI
presided over by Judge Gregorio C. Pineda.
By virtue of the order dated February 28, 1978 issued by
Judge Pineda in the new case, petitioner obtained a writ of
preliminary attachment against Baroom's alleged cargoes
which is the subject matter in Civil Case No. 105048.
Meanwhile, in Civil Case No. 105048, on August 2, 1978,
respondent Judge gave Attys. Quasha and Valmonte ten
(10) days from receipt of order within which to explain why
they should not be held in contempt of court for filing a
case entitled "Quasha Asperilla Ancheta Valmonte Pea
and Marcos vs. AlSayed Abdullah Mohammed Baroom"
docketed as Civil Case No. 28710 in the Court of First
Instance of Rizal, Branch XXI, where they obtained a writ
of preliminary attachment over the cargoes, which they
knew to be subject matter of Civil Case No. 105048
pending before his sala." 5 A compliance with said order
was filed on August 24, 1978, with petitioner alleging that
their cause of action against Baroom was for payment of
professional fees and reimbursement of expenses while
Case No. 105048 before Judge Juan was for alleged unpaid
charter hire fees.
On August 25, 1978, respondent Judge issued an order
approving the sale of the cargo in question to Apollo Kokin
Trading Co., Ltd. In accordance with the earlier order of
April 28, 1977, respondent Judge directed the deposit of
the sale proceeds with a banking institution to be approved
by the Court and its disposition only on orders of the
Court. 6
On September 8, 1978, Filcar filed with the Court of First
Instance of Rizal an urgent omnibus motion to be allowed
to appear and to dismiss the case and to lift the writ of
preliminary attachment and set aside the order to auction
the cargo, attaching thereto the order of respondent Judge
dated August 25, 1978, approving the sale in favor of
Apollo Kokin Trading Co., Ltd. of the subject cargo, the
AGUSTIN, E.P.
proceeds of which after deducting all expenses shall be

deposited with the court.
attachment was reinstated by the Court of First Instance of

Rizal in its order dated July 5, 1979. 8
Thus, petitioner, on October 23, 1978, filed before this

Court the instant petition. Petitioner assails the order of
August 25, 1978, not the earlier order of April 28, 1977
approving the sale in favor of Apollo Kokin Trading Co.,
Ltd. of the questioned cargo for having been issued in grave
abuse of discretion considering that subject cargo was
allegedly earlier attached by the Court of First Instance of
Rizal.
After several pleading were filed in this Court, We gave due

course to the petition. 9
Without giving due course to the petition and pending the

filing of comments by respondents, this Court issued on
October 24, 1978 a temporary restraining order,
enjoining respondents to immediately
cease and desist from taking, unloading,
transferring, conveying, transporting or
disposing of the cargoes or any part
thereof aboard the MC San Vicente and
Dong Myung, * or from taking the
cargoes away, subject matter of Civil
Case No. 105048 entitled 'Filipinas
Carriers, Inc. vs. AB Charles Thorburn &
Co., et al.' of the Court of First Instance
of Manila, Branch X." 7
On October 30, 1978, petitioner filed a manifestation and
motion informing this Court that notwithstanding the
restraining order, the MV Don Myung, with the cargo
aboard left surreptitiously at midnight of October 24, 1978
without the assistance of any pilot in violation of Harbor
rules. The goods were then allegedly sold for US
$220,200.43 under irrevocable letters of credit issued by
the Fuji Bank of Osaka, Japan. Petitioner, thus, prayed
that several persons, namely, Mr. Federico Tabora, Jr.,
President of Filipinas Carriers, Inc., Mr. Gregorio
Gatchalian, allegedly operations manager of the American
Steamship Agencies, Inc. being the agent representing the
MV Dong Myung, Lt. JG Godofredo Orcullo of the
Operations Center and Seaman 1st Class Avelino Lontoc of
the Philippine Coast Guard be cited for contempt.
In the meanwhile, a compromise agreement dated October
16, 1978 and filed on November 2, 1978 wherein Filcar
assigned its interests and rights in the proceeds of the sale
of the subject cargoes to Sierra Madre which the latter
accepted was approved by the respondent court in its
decision of November 3, 1978. An amended petition was
thus filed in this Court impleading Sierra Madre as partly
respondent in his case with prayer that a writ of
garnishment be issued on the proceeds of the sale of the
cargoes which are in the possession of Sierra Madre, and
an order be issued directing Sierra Madre and all those to
whom such proceeds may subsequently be reassigned to
deliver to petitioner such portion of the proceeds of the sale
as would satisfy the attorney's lien in the interest of justice.
Coming back to the omnibus motion of Filcar for the lifting
of the preliminary attachment issued by the Court of First
Instance of Rizal, the said court on December 7, 1978
dismissed petitioner's case and lifted the preliminary
attachment
issued
therein.
Upon
motion
for
reconsideration dated April 7, 1979, the said preliminary
58
Petitioner contends that respondent court did not acquire

jurisdiction neither over any of the defendants as they have
not voluntarily submitted themselves to the jurisdiction of
respondent court, nor over the res, since there had been no
seizure of the property under a legal process, as by a writ of
attachment or other process of similar effect. The instant
case is allegedly neither a proceeding in rem as would place
the property under its potential power citing the leading
case of Banco Espaol v. Palanca 10 which held:
Jurisdiction over the property which is
the subject of litigation may result either
from a seizure of the property under
legal process, whereby it is brought into
the actual custody of the law, or it may
result from the institution of legal
proceedings wherein under special
provisions of law, the power of the court
over the property is recognized and made
effective. In the latter case the property,
though at all times within the potential
power of the court, may never be taken
into actual custody at all. An illustration
of the jurisdiction acquired by actual
seizure
is
found
in
attachment
proceedings, where the property is seized
at the beginning of the action, or some
subsequent stage of its progress and
held to abide the final event of the
litigation. An illustration of what we term
potential jurisdiction over the res is
found in the proceeding to register the
title of land under our system for the
registration of land. Here the court,
without taking actual physical control
over the property assumes, at the
instance of some person claiming to be
the owner, to exercise a jurisdiction in
rem over the property and to adjudicate
the title in favor of the petitioner against
all the world.
Claiming that it was the Court of First Instance of Pasig
that first acquired jurisdiction over the res to the exclusion
of respondent court, petitioner insists that the latter court's
act is undue interference which cannot be countenanced.
There is no pretense that respondent court has jurisdiction
over the cause of action. It is much too obvious to merit a
fuller discussion. Suffice it to say that an action based
upon an oral contract of transportation of goods by water is
an action in admiralty which comes under the original and
exclusive jurisdiction of the Court of First Instance
irrespective of the value of the cargo. 11
As to the person of Baroom, it is to be conceded that at the
initial stage of the proceeding in the Court of First Instance
of Manila prior to the issuance of the order of April 28,
1977 directing the sale of the property and petitioner's
firing of various pleadings, said court did not have
AGUSTIN, E.P.
jurisdiction over Baroom. Baroom was a non-resident alien

and he was beyond the reach of the court's legal processes.
But since the action is brought principally for the
enforcement of maritime lien against the property of
defendants who failed to pay the charter hire fee, and
therefore the same is in the nature and character of a
proceeding quasi in rem, jurisdiction over defendant
Baroom is not essential. An action quasi in rem has been
defined as "an action between parties where the direct
object is to reach and dispose of property owned by them or
of some interest therein." As such the properties allegedly
owned by him are primarily made liable. In elucidating the
characteristic of a proceeding where a non-resident
defendant fails to appear, this Court in the aforecited
leading case of Banco Espaol Filipino v. Palanca said:
If however, the defendant is a nonresident and, remaining beyond the
range of the personal process of the
court, refuses to come in voluntarily, the
court never acquires jurisdiction over the
person at all. Here the property itself is
in fact the sole thing which is impleaded
and is the responsible object which is
the subject of the exercise of judicial
power. It follows that the jurisdiction of
the court in such case is based
exclusively on the power which, under
the law, it possesses over the property;
and any discussion relative to the
jurisdiction of the court over the person
of the defendant is entirely apart from
the case.
The foregoing ruling was applied in Mabanag vs. Ganimore:
12
As a general rule, when the defendant is

not residing and is not found in the
Philippines, the Philippine courts cannot
try any case against him because of
impossibility of acquiring jurisdiction
over his person, unless he voluntarily
appears in court. But when the action ...
is intended to seize or dispose of any
property, real or personal, of the
defendant, located in the Philippines, it
may validly be tried by the Philippine
courts, for then, they have jurisdiction
over the res, i.e. ... the property of the
defendant, and their jurisdiction over the
person of the non-resident is not
essential ... . (Citing I Moran's Comments
on the Rules of Court, 2d Ed., 105).
At any rate, defendant Baroom filed later, aside from a
motion to dismiss, an answer with counterclaim praying
that plaintiff be directed to deliver the cargoes of defendant
Baroom to Jeddah and to pay damages, etc. and a crossclaim against Sierra Madre, thereby abandoning any
question on jurisdiction over the person and submitting
himself to the jurisdiction of the court. In Tenchavez vs.
Escao, 13 this Court quoted with approval the ruling in
Merchant's Heat and Light Co. vs. Clow & Sons, 204 U. S.
286, 51 Law Ed. 488:
59
We assume that the defendant lost no

rights by pleading to the merits, as
required,
after saving
its
rights.
Harkness vs. Hyde, 98 U.S. 476, 25 L.
ed. 237; Southern P. Co. vs. Denton, 146
U.S. 202, 36 L. ed. 943, 13 Sup. Ct. Rep.
44. But by setting up its counterclaim
the defendant became a plaintiff in its
turn, invoked the jurisdiction of the
court in same action, and, by invoking
submitted to it. It is true that the
counterclaim seems to have arisen
wholly out of the same transaction that
the plaintiff sued upon, and so to have
been in recoupment rather than in setoff proper. But, even at common law,
since the doctrine has been developed,
as demand in recoupment is recognized
as a cross demand, as distinguished
from a defense. Therefore, although there
has been a difference of opinion as to
whether a defendant, by pleading it, is
concluded by the judgment from
bringing a subsequent suit for the
residue of his claim, a judgment in his
favor being impossible at common law,
the authorities agree that he is not
concluded by the judgment if he does not
plead his cross demand, and that
whether he shall do so or not is left
wholly to his choice. Davis vs. Hedges,
L.R. 6 Q.B. 687; Mondel vs. Steel, 8 Mees
& W. 858, 872; O'Connor vs. Varney, 10
Gray, 231. This single fact shows that
the defendant, if he elects to sue upon
his claim in the action against him,
assumes the position of an actor and
must take the consequence. The right to
do so is of modern growth, and is merely
a convenience that saves bringing
another suit, not a necessity of the
defense.
In the aforecited case, the Court explains that the rule is
such because "it cannot look with favor upon a party
adopting
not
merely
inconsistent,
but
actually
contradictory; positions in one and the same suit, claiming
that a court has no jurisdiction to render judgment against
it, but has such jurisdiction to give a decision its favor. 14
It may be noted that if the defendant voluntarily appears,
the action becomes as to him a personal action and is
conducted as such. Even then, the court does not lose its
jurisdiction over the res, assuming that it has indeed
jurisdiction over the res. The res still remains under its
control and disposition.
As regards jurisdiction over the res, We hold that
respondent acquires jurisdiction over it. Where a property
is burdened by a lien, a writ of attachment is no longer
necessary in order that jurisdiction over the property may
be obtained by the court. In the same cited case by
petitioner, in the Banco Espaol case, it was clarified:
In an ordinary attachment proceeding, if
the defendant is not personally served,
the preliminary seizure is to be
AGUSTIN, E.P.
considered necessary in order to confer

jurisdiction upon the court. In this case
the lien on the property is acquired by
seizure; and the purpose of the
proceeding is to subject the property to
that lien. If a lien already exists, whether
created by mortgage, contract, or
statute, the preliminary seizure is not
necessary, and the court proceeds to
enforce such lien in the manner provided
by law precisely as though the property
had been seized upon attachment.
(Roller v. Holly, 176 U.S. 398, 405; 44 L.
ed. 520).
The reason for the rule is obvious. An attachment
proceeding is for the purpose of creating a lien on the
property to serve as security for the payment of the
creditors' claim. Hence, where a lien already exists, as in
this case a maritime lien, the same is already equivalent to
an attachment. Moreover, since the property subject of the
action for the enforcement of the maritime liens was
already in the possession of private respondent, there is no
need for seizure for the court to obtain jurisdiction over the
rest.
Where a party in actual possession of the
res subject to the lien is before the court,
the res is within the jurisdiction of the
court for the enforcement of the lien A
suit may be maintained to foreclose a
lien on property within the jurisdiction of
the court, although some interest or
claim therein is held by a non-resident.
Art. 1177. The creditors having pursued

the property in possession of the debtor
to satisfy their claims may exercise all
the rights and bring all the actions of the
latter for the same purpose, save those
which are inherent in his person, they
may also impugn the acts which the
debtor may have done to defraud them.
Indeed, petitioner should have maintained its action in
respondent's court. After all, a court which has in its
possession, control or equivalent dominion, property or
funds involved in litigation may exercise exclusive
jurisdiction over such property or funds to determine the
rights therein, such as questions respecting the title,
possession or control, management and disposition thereof
and another court of concurrent or coordinate jurisdiction
cannot interfere with such possession or control. 16 The
rights to be determined by said court necessarily include
the attorney's fees due to the lawyers who represented the
parties. Significantly, the lower court which undoubtedly
has in its favor the presumption of regularity and which
was never restrained by this Court from proceeding with
the ease issued an order dated January 25, 1979 17 making
the following findings of fact:
1. Thorburn fails to pay the freight so
that respondent Filcar had the right to
impose its lien on the cargo including
sub-freights.
Paragraph 16 of the time charter
contract provides:
15
The other argument posed by petitioner to challenge

respondents' right over the property is that there is no
privity of contract between Baroom and respondents. It
avers that Baroom is not merely the agent of Thorburn but
himself the owner of some of the cargoes and whose
contract to ship the same is with sub-charterer Thorburn.
It avers further that neither Thorburn could attach a lien
on the property since Baroom had allegedly paid fully for
the shipment even before the vessel sailed, as evidenced by
the clean freight pre-paid bills of lading.
Claiming right over the cargo to answer for the unpaid
professional fees, petitioner submits to this Court the
required written authority from Baroom claiming that due
to snag in communication and unreliability of the mailing
system it did not receive the documents from its client on
time.
The foregoing entails determination of facts. It would be
highly irregular if this Court would have to resolve those
questions, this Court not being a trier of facts. The several
documents mentioned by petitioner and attached to its
pleadings before this Court were never presented before the
lower court. After Baroom had abandoned his defense
which created the presumption that he had no defense,
that he is not the owner of the cargo, petitioner should
have pursued the same argument before respondent court
in claiming the alleged professional fee. This is in
accordance with Article 1177 of the New Civil Code which
provides:
60
That the owners shall have a lien

upon all cargoes and all subfreights for any amounts due
under this Charter including
General Average contributions
and the charterers to have a lien
on the ship for all monies paid in
advance and not earned, and
any'overpaid hire or excess
deposit to be returned at once.
Charterers will not suffer nor
permit to be continued, any lien
or encumbrance incurred by
them or their agents, which
might have priority over the title
and interest of the owners of the
vessel.
2. Thorburn executed a liner term
contract with Baroom who was playing
the double role of agent of said Thorburn
and agent of three consignee banks in
Jeddah.
3. Baroom appealed to Filcar to be its
agent, but when it was discovered that
he was the agent of Charles Thorburn
and the three (3) consignee banks, the
application was rejected due to conflict of
interest.
AGUSTIN, E.P.
4. The pre-paid freight representation of

Baroom is false because the condition of
the L/C issued by the 3 consignee banks
provides a C/F arrangement which
means payment of the goods, insurance
and freight can only be made upon
physical delivery of the goods in Jeddah.
5. Baroom intervened in the case (before
respondent court) using the Quasha law
office. He later withdrew upon knowing
he has no defense. In fact, he did not
even give Quasha written authority to
appear for him as his lawyer.
6. The court of respondent Judge "has
jurisdiction over the person of defendant
and subject cargo of the vessel.
7. The Quasha law office is not entitled
to any claim for attorney's lien
Prescinding from the foregoing, We find no abuse of
discretion in issuing the questioned order of August 25,
1978, and therefore the instant petition should be
dismissed. It could not be claimed that the act of
respondent Judge in issuing the said order amounts to
interference with the writ of attachment dated February 28,
1978 issued by Judge Pineda, for by the time the said writ
was issued, respondent Judge had already control and
disposition of the case. The order of August 25, 1978 was
but an implementation of the earlier order of April 28, 1977
directing the sale of the cargoes on the ground of extreme
necessity as the cargoes as found by respondent Judge
upon ocular inspection were in danger of deteriorating and
losing their market value and the vessel was also in danger
of sinking. By then, respondent Judge had also issued the
order dated July 19, 1977 approving a Deed of Sale of
subject cargoes.
It should be noted that at the time petitioner filed the
action before Judge Pineda, it has already submitted itself
to the jurisdiction of respondent court and in fact its
"charging lien" which is the same cause of action before
Judge Pineda was still pending before respondent court.
Pending also before respondent Judge were petitioner's
answer with counterclaim, cross claim, motion to dismiss
and motion to withdraw from the case.
Petitioner may not enforce its attorney's lien, which
accordingly is based on Section 37 of Rule 138 which
provides:
Sec. 37. Attorney's lien. An attorney
shall have a lien upon the funds,
documents and papers of his client which
have lawfully come into his possession
and may retain the same until his lawful
fees and disbursements have been paid
and may apply such funds to the
satisfaction thereof. He shall also have a
lien to the same extent upon all
judgments for the payment of money,
and executions issued in pursuance of
such judgments, which he has secured
61
in a litigation of his client, from and after

the time when he shall have caused a
statement's of his claim of such lien to
be entered upon the records of the court
rendering such judgment, or issuing
such execution, and shad have caused
written notice thereof to be delivered to
his client and to the adverse party; and
he shall have the same right and power
over such judgments and executions as
his client would have to enforce his lien
and secure the payment of his just fees
and disbursements.
Based on the foregoing provision, the liens for attorney's
fees and expenses apply only on the funds or documents of
clients which lawfully come to the possession of the
counsel (called retaining lien) and to all judgments secured
by the counsel (called charging lien). In his manifestation
and motion before respondent Judge, petitioner is claiming
for his charging lien But it should be noted that at the time
of its filing, the orders of April 27, 1977 ordering the sale of
the cargoes and July 19, 1977 approving the Deed of Sale
of cargoes were already in existence and both were in fact
in favor of private respondent. It is curious to note that
petitioner never questioned said orders on appeal or by a
special civil action. Petitioner's client in fact even
abandoned its case. Hence, having no favorable judgment
that could be anticipated, the charging lien has no leg to
stand on. Perhaps because it was aware of its predicament
that petitioner filed an independent action for recovery of
its professional fees and for reimbursement of expenses
which would have been proper, except that the ownership
of the property sought to be attached was questionable and
the same was already sold by respondent court. But just as
We had said before, petitioner should have filed its claim
for professional fees in respondent's court for said court
has the exclusive jurisdiction to determine the real owner
of the cargoes. We hasten to add, however, that the action
should not be for a charging lien, but a simple complaint in
intervention for recovery of professional services and
reimbursement of expenses, thus avoiding multiplicity of
suits.
On October 24, 1978, We issued a temporary restraining
order enjoining the disposition or unloading of the cargoes.
It turned out, however, that before the said order could be
served upon the private respondents, all the cargoes
subject of the petition had been loaded into the M.V. Dong
Myung, of which this Court has no jurisdiction being a
foreign vessel. When the vessel sailed and the cargoes
eventually sold, everything became fait accompli and the
case before Us moot and academic.
Petitioner prays for the garnishment of the proceeds, but to
allow the same, there must first be a determination of the
ownership of the cargo. Again, We say We are not in a
position to do so. Petitioner failed to file motion for
reconsideration of the order of August 25, 1978 approving
the sale of the cargo, and it abandoned its own case before
respondent Judge. The result of its negligence in allowing
considerable period to lapse before claiming right over the
cargo, and resorting to injunctive relief must be borne by it.
Petitioner is not entitled to any relief and the instant
petition must be dismissed. We shall also dismiss
petitioner's charge of contempt against respondent since as
AGUSTIN, E.P.
We said before, before the temporary restraining or order

could be served everything was already fait accompli .
Likewise, We also dismiss the respondents' charge against
petitioner for direct contempt for allegedly omitting material
facts vital to the fun appreciation of this Court. In De
Midgely vs. Ferandos, 18 this Court ruled that such tactic is
generally tolerated because understandably lawyers are apt
to slant the presentation of their clients' case so that they
would have favorable judgments. "Courts are not deceived
by the exaggerations and distortions in a counsel's lopsided
submission of his client's case especially where, as in this
case, the alert opposing counsel calls the court's attention
to that fact. "
Indeed, "contempt of court presupposes a contumacious
attitude, a flouting of arrogant belligerence, a defiance of
the court. 19 It is an offense against the authority and
dignity of the court.
WHEREFORE, the petition is hereby dismissed.
SO ORDERED.
Makasiar (Chairman), Aquino, Concepcion, Jr. and Guerrero,
JJ., concur.
Abad Santos and Escolin, JJ., concur in the result.
62
AGUSTIN, E.P.
Rules on Prior Contemporaneous

Jurisdiction
By mortgaging a piece of property, a debtor merely subjects

it to a lien but ownership thereof is not parted with.
1. ADLAWAN vs. TORRES
The Inability to pay ones creditors is no necessarily

synonymous with fraudulent intent not to honor an
obligation.
Facts: Petitioner Adlawan was indebted to Respondent

company Aboitiz for construction projects the former was
awarded with. However, due to inability to pay, Aboitiz filed
for collection of sum of money against petitioner in the CFI
of Cebu. It also moved for preliminary attachment on some
of Adlawans properties after filing a bond.
When petitioners filed for reconsideration of the order

directing the issuance of the writ, the respondent Judge
Torres should have conducted a hearing or required a
submission of counter-affidavit from the petitioners, if only
to gather the facts in support of the alleged fraud.
Aboitiz filed a notice of dismissal for the above mention

case. When Adlawan moved for the enforcement of the
dismissal, it was denied by the court on account of the
filing by respondent Aboitiz an action or delivery of
personal property before the CFI of Lapu-Lapu and
petitioner Adlawans filing for damages in the same court
for the seizure of his property by virtue of the preliminary
attachment.
Respondent Aboitiz alleged that the voluntary dismissal of
the previous case was without prejudice to the institution
of another action based on the same subject matter and
that the issuance of the writ was justified because the
petitioners were intending to defraud Aboitiz by mortgaging
11 parcels of land to PCIB thereby making PCIB a preferred
creditor to the prejudice of Aboitiz.
Issue: Was the writ of attachment legal or valid?
Held: Negative. The affidavit submitted by Aboitiz in
support of its prayer for the writ of attachment does NOT
meet the requirements of Rule 57 of the Rules of Court
regarding allegations on impending fraudulent removal,
concealment and disposition of defendants property. To
justify a preliminary attachment, the removal or disposal
must have been made with intent to defraud defendants
creditors.
The factual basis must be alleged in the affidavit in support
of the prayer for the writ of attachment if not so specifically
alleged in the verified complaint. (See full text for the copy
of the affidavit)
The Supreme Court have found that there is no factual
allegation which may constitute as a valid basis for the
contention that the mortgage was in fraud of Aboitiz.
The affidavit is the foundation of the writ and if none be
filed or one be filed which wholly fails to set out some facts
required by law to be stated therein, there is no jurisdiction
and the proceedings are null and void.
Bare allegation that an encumbrance of a property is in
fraud of the creditor does NOT suffice. Factual bases for
such conclusion must be clearly averred.
63
AGUSTIN, E.P.

SUPREME COURT
Manila
FIRST DIVISION
G.R. Nos. 65957-58 July 5, 1994

ELEAZAR V. ADLAWAN and ELENA S. ADLAWAN,
petitioners,
vs.
Hon. Judge RAMON AM. TORRES, as Presiding Judge of
Branch 6, Regional Trial Court Cebu City, ABOITIZ &
COMPANY, INC. and THE PROVINCIAL SHERIFFS OF
CEBU, DAVAO, RIZAL and METRO MANILA,
Respectively, respondents.
Pablo P. Garcia for petitioners.
Isaias P. Dicdican and Sylva G. Aguirre-Paderanga for
Aboitiz & Co., Inc.
QUIASON, J.:
This is a petitioner for certiorari and mandamus with
preliminary injunction or restraining order to nullify: (1)
the Order dated September 14, 1983 of respondent Judge
Ramon Am. Torres of the Regional Trial Court, Branch 6,
Cebu City, in Civil Case No. CEB-1185 and the Order dated
September 26, 1983 of Judge Emilio A. Jacinto of Branch
23 of the same court in Civil Case No. CEB-1186, which
granted the motion for the issuance of writs of preliminary
attachment for the seizure of the property of petitioners by
respondent Provincial Sheriffs; and (2) the Order dated
December 12, 1983 of respondent Judge Ramon Am.
Torres in the consolidated cases, Civil Case No. CEB-1185
and Civil Case No. CEB-1186.
I
In a complaint dated April 24, 1982 filed with the Court of
First Instance of Cebu, now Regional Trial Court, (Civil
Case No. R-21761), respondent Aboitiz and Company, Inc.
(Aboitiz) sought to collect from petitioners a sum of money
representing payments for: (1) the unpaid amortizations of
a loan; (2) technical and managerial services rendered; and
(3) the unpaid installments of the equipment provided by
respondent Aboitiz to petitioners (Rollo, p. 37).
Acting on the ex parte application for attachment, the
Executive Judge of the Court of First Instance of Cebu,
issued on May 14, 1982, 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.
Subsequently, the case was raffled to Branch 11 of the
Court of First Instance of Cebu, which issued a writ of
attachment addressed to the Provincial Sheriffs of Cebu
and the City Sheriff of Davao City. It was the Sheriff of
Davao City who enforced the writ of attachment, resulting
64
in the seizure of heavy construction equipment, motor

vehicle spare parts, and other personal property with the
aggregate value of P15,000,000.00. 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.
Petitioners moved for a bill of particulars and to set aside
the ex parte writ of attachment. Finding merit in the motion
to set aside the writ, Branch 11 ordered on July 6, 1982
the lifting of the writ and, consequently, the discharge of
the property levied upon.
Respondent Aboitiz filed an urgent ex parte motion, praying
for the stay of the July 6, 1982 Order for a period of 15
days for it to be able to appeal the order. The motion was
favorably acted upon.
However, on July 13, 1982, respondent Aboitiz filed a
notice of dismissal of its complaint in accordance with
Section 1, Rule 17 of the Revised Rules of Court.
Consequently, Branch 11 issued an order confirming the
notice of dismissal, emphasizing that all orders of the court
issued prior to the filing of said notice of dismissal had
been rendered functus oficio, and considering all pending
incidents in the case as moot and academic.
Petitioner Eleazar Adlawan filed a motion praying that the
July 6, 1982 Order be implemented and enforced. On
December 20, however, 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.
619-L), 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.
In the replevin suit, Branch 16 ordered the seizure and
delivery of the property described in the complaint. Said
property were later delivered by the provincial sheriff to
respondent Aboitiz. Alleging that while his office was
situated in Cebu City, Adlawan was a resident of
Minglanilla, and therefore, the Lapu-lapu City court should
not entertain the action for replevin. Petitioner Eleazar
Adlawan filed an omnibus motion praying for the
reconsideration and dissolution of the writ of seizure, the
retrieval of the property seized, and the dismissal of the
complaint. He also averred that the property seized were in
custodia legis by virtue of the writ of attachment issued by
Branch 11. His omnibus motion was denied. Subsequently,
he filed a motion for reconsideration which was not
granted.
The denial of his omnibus motion led petitioner Eleazar
Adlawan to file a petition for certiorari and mandamus in
the Supreme Court (G.R. No. 63225). The Third Division of
this Court ruled on April 3, 1990 that since attachment is
an ancillary remedy, the withdrawal of the complaint left it
with no leg to stand on. Thus, the Court disposed of the
case as follows:
WHEREFORE, in view of the foregoing,
this Court rules that the attached
AGUSTIN, E.P.
properties left in the custody of private

respondent Aboitiz and Company, Inc. be
returned to petitioner Eleazar V.
Adlawan without prejudice to the
outcome of the cases filed by both
parties (Rollo, p. 324).
Respondent Aboitiz filed a motion for reconsideration of the
decision, contending that the replevin case was distinct
and separate from the case where the writ of attachment
was issued. It argued that the writ of replevin, therefore,
remained in force as the Third Division of the Supreme
Court had not found it illegal. The motion was, however,
denied with finality in the Resolution of July 11, 1990.
Undaunted, respondent Aboitiz filed a second motion for
reconsideration with a prayer that the dispositive portion of
the decision be clarified. It asserted that because the writ of
preliminary attachment was different from the writ of
replevin, we should rule that the property subject of the
latter writ should remain in custodia legis of the court
issuing the said writ.
In the Resolution dated September 10, 1990, 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." Accordingly, the dispositive portion
of the April 3, 1990 decision of the Third Division of this
Court was modified to read as follows:
WHEREFORE, in view of the foregoing,
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. R21761 be returned to the petitioner, but
properties in the custody of the private
respondent by virtue of the writ of
replevin issued in Civil Case No. 619-L
be continued in custodia legis of said
court pending litigation therein.
The Decision in G.R. No. 63225 having become final and
executory, entry of judgment was made on November 15,
1990. This should have terminated the controversy
between petitioners and respondent Aboitiz insofar as the
Supreme Court was concerned, but that was not to be. On
September 9, 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, Branch 23, Cebu City, docketed as
Civil Cases Nos. CEB-1185 and CEB-1186. The complaint
in Civil Case 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, which indebtedness as of June 30,
1983 totaled P13,430,259.14. Paragraph 16 of the
complaint states:
16. That, in view of the enormous
liabilities which the defendants have
with the plaintiff, defendants executed a
real estate mortgage covering eleven (11)
65
parcels of land in favor of Philippine

Commercial and Industrial Bank (PCIB)
to secure a P1,000,000.00 loan with said
bank and was able to remove, conceal
and dispose of their properties, obviously
to defraud the plaintiff, . . . (Rollo, pp.
65-66).
The complaint in Civil Case No. 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, which indebtedness as of June 30,
1983 totalled P5,370,672.08. Paragraph 15 of the
complaint is similarly worded as paragraph 16 of the
complaint in Civil Case No. CEB-1185.
Civil Case No. CEB-1185 was raffled to the Regional Trial
Court, Branch 6, presided by respondent Judge Ramon
Am. Torres. On September 14, 1983, respondent Judge
ordered the issuance of a writ of attachment upon
respondent Aboitiz' filing of a bond of P5,000,000.00.
Similarly, in Civil Case No. CEB-1186, which was raffled to
Branch 23, presiding Judge Emilio A. Jacinto ordered the
issuance of a writ of attachment upon the filing of a bond
of P2,500,000.00. Accordingly, in Civil Case No. CEB-1185,
the Acting Provincial Sheriff of Cebu issued separate writs
dated September 26, 1983 addressed to the Sheriffs of
Cebu, Davao and Metro Manila. No writ of preliminary
attachment was, however, issued in Civil Case No. CEB1186.
Petitioners then filed in Civil Cases Nos. CEB-1185 and
CEB-1186 urgent motions to hold in abeyance the
enforcement of the writs of attachments. 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.R. No. 63225, the filing of the two
cases, as well as the issuance of the writs of attachment,
constituted undue interference with the processes of this
court in the then pending petition involving the same
property.
Upon motion of respondent Aboitiz, Branch 23 issued on
October 13, 1983, an order directing the transfer to Branch
6 of Civil Case No. CEB-1186 for consolidation with Civil
Case No. CEB-1185.
Meanwhile, in its comment on petitioners' motion to
withhold the enforcement of the writs of attachment,
respondent Aboitiz alleged that the voluntary dismissal of
Civil Case No. R-21761 under Section 1, Rule 17 of the
Revised Rules of Court was without prejudice to the
institution of another action based on the same subject
matter. 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 P1,100,000.00,
thereby making PCIB a preferred creditor to the prejudice
of respondent Aboitiz, which had an exposure amounting
to P13,430,259.14.
Petitioners then filed a rejoinder to said comment,
contending that since the property subject of the writ of
AGUSTIN, E.P.
attachment have earlier been attached or replevied, the

same property were under custodia legis and therefore
could not be the subject of other writs of attachment.
On December 12, 1983, respondent Judge issued an order
finding no merit in petitioners' motion for reconsideration
and directing the sheriffs of Cebu, Davao and Metro Manila
"to proceed with the enforcement and implementation of
the writs of preliminary attachment." 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, pp. 109-113).
On December 15, petitioners filed an ex parte motion
praying: (1) that the December 12, 1983 Order be set for
hearing; (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; and
(3) that within the same 15-day period the implementation
or enforcement of the writs of attachment be held in
abeyance.
On the same day, 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, p. 116).
On December 27, petitioners filed the instant petition for
certiorari and mandamus. 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, concealment or
disposition of property. They argued that granting the
mortgage constituted removal or disposition of property, it
was not per se a ground for attachment lacking proof of
intent to defraud the creditors of the defendant.
Petitioners contended that in Civil Case No. 21761, Branch
11 had ruled that the loan for which the mortgage was
executed was contracted in good faith, as it was necessary
for them to continue their business operations even after
respondent Aboitiz had stopped giving them financial aid.
Petitioners also contended that respondent Judge exceeded
his jurisdiction when he issued the Order of December 12,
1983, without first hearing the parties on the motion for
attachment and the motion to dissolve the attachment.
Moreover, they argued that respondent Judge gravely
abused his discretion in proceeding with the case,
notwithstanding that his attention had been called with
regard to the pendency of G.R. No. 63225 in this Court.
As prayed for by petitioners, we issued a temporary
restraining order on January 6, 1984 "enjoining the
respondents from enforcing or implementing the writs of
preliminary attachment against the property of petitioners,
all dated September 26, 1983 and issued in Civil Cases
Nos. CEB 1185 and 1186" (Rollo, p. 118).
II
66
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.
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,
concealment and disposition of defendant's property. As
held in Carpio v. Macadaeg, 9 SCRA 552 (1963), to justify a
preliminary attachment, the removal or disposal must have
been made with intent to defraud defendant's creditors.
Proof of fraud is mandated by paragraphs (d) and (e) of
Section 1, Rule 57 of the Revised Rules of Court on the
grounds upon which attachment may issue. Thus, 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. The affidavit submitted by respondent
Aboitiz states:
REPUBLIC
OF
THE
PHILIPPINES
CITY OF CEBU ...............) S.S.
I, ROMAN S. RONQUILLO, of legal age,
married and a resident of Cebu City,
after being sworn in accordance with
law, hereby depose and say:
That I am the Vice-President of the
plaintiff corporation in the above-entitled
case;
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 P13,430,259.14 exclusive of interests
thereon and damages claimed;
That the defendants have removed or
disposed of their properties with intent
to defraud the plaintiff, their creditor,
because on May 27, 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 P1,000,000.00 loan with the
same bank;
That this action is one of those
specifically mentioned in Section 1, Rule
57 of the Rules of Court, 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, plaintiff herein;
That there is no sufficient security for
the claims sought to be enforced by the
present action;
AGUSTIN, E.P.
That the total amount due to the plaintiff

in
the
above-entitled
case
is
P13,430,259.14, excluding interests and
claim for damages and is as much the
sum for which an order of attachment is
herein sought to be granted; above all
legal counter-claims on the part of the
defendants.
IN VIEW WHEREOF, I hereunto set my
hand this 24th day of August 1983 at
Cebu City, Philippines.
(Rollo, pp. 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, which encumbrance respondent
Aboitiz considered as fraudulent concealment of property to
its prejudice. We find, however, 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. As this Court said in Jardine-Manila Finance, Inc. v.
Court of Appeals, 171 SCRA 636 (1989), "[T]he general rule
is that the affidavit is the foundation of the writ, and if
none be filed or one be filed which wholly fails to set out
some facts required by law to be stated therein, there is no
jurisdiction and the proceedings are null and void."
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. By mortgaging a
piece of property, a debtor merely subjects it to a lien but
ownership thereof is not parted with.
Furthermore, the inability to pay one's creditors is not
necessarily synonymous with fraudulent intent not to
honor an obligation (Insular Bank of Asia & America, Inc.
v. Court of Appeals, 190 SCRA 629 [1990]).
Consequently, when petitioners filed a motion for the
reconsideration of the order directing the issuance of the
writ of attachment, respondent Judge should have(
considered it as a motion for the discharge of the S
attachment and should have conducted a hearing org
required submission of counter-affidavits from thed
petitioners, if only to gather facts in support of the.
allegation of fraud (Jopillo, Jr. v. Court of Appeals, 167)
SCRA 247 [1988]). This is what Section 13 of Rule 57
mandates.
R
A
M
This procedure should be followed because, as the Court
O
has time and again said, attachment is a harsh,
N
extraordinary and summary remedy and the rules
governing its issuance must be construed strictly against
S
the applicant. Verily, a writ of attachment can only be
.
granted on concrete and specific grounds and not on
general averments quoting perfunctorily the words of the
R
Rules (D.P. Lub Oil Marketing Center, Inc. v. Nicolas, 191
O
SCRA 423 [1990]).
N
Q
The judge before whom the application is made exercisesU
full discretion in considering the supporting evidenceI
proffered by the applicant. One overriding consideration isL
that a writ of attachment is substantially a writ ofL
execution except that it emanates at the beginning, insteadO
of at the termination of the suit (Santos v. Aquino, Jr., 205
SCRA 127 [1992]; Tay Chun Suy v. Court of Appeals, 212A
SCRA 713 [1992]).
f
f
i
We need not discuss the issue of whether or not Civil Cases
a
Nos. CEB-1185 and CEB-1186 constituted undue
n
interference with the proceedings in G.R. No. 63225 in view
t
of the entry of judgment in the latter case.
WHEREFORE, the petition is GRANTED and the Temporary
Restraining Order issued on January 6, 1984 is made
PERMANENT. Respondent Judge or whoever is the
presiding judge of the Regional Trial Court, Branch 6, Cebu
City, is DIRECTED to PROCEED with the resolution of Civil
Cases Nos. CEB-1185 and CEB-1186 with deliberate
dispatch.
SO ORDERED.
Cruz, Davide, Jr., Bellosillo and Kapunan, JJ.,
concur.
Bare allegation that an encumbrance of a property is in

fraud of the creditor does not suffice. Factual bases for
such conclusion must be clearly averred.
67
AGUSTIN, E.P.
2. CONSOLIDATED BANK vs. IAC

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 73976 May 29, 1987
THE CONSOLIDATED BANK and TRUST CORPORATION
(SOLIDBANK), petitioner,
vs.
HON. INTERMEDIATE APPELLATE COURT, GOLDEN
STAR INDUSTRIAL CORPORATION, NICOS INDUSTRIAL
CORPORATION and THE PROVINCIAL SHERIFF OF
BULACAN, respondents.
C.M. Delos Reyes and Associates for petitioner.
Magtanggol C. Gunigundo and Fajardo Law office for
respondents.
GUTIERREZ, JR., J.:

The basic issue for resolution in this petition for review of
the December 13, 1985 decision of the Intermediate
Appellate Court, now the Court of Appeals, as well as the
resolution of March 13, 1986 denying the motion for
reconsideration, is whether or not an attaching creditor
acquires the right of redemption of a debtor over the
attached properties of the latter which are subsequently
extrajudicially foreclosed by third parties.
Briefly, the facts are as follows: Originally, petitioner
Consolidated Bank and Trust Corporation (SOLIDBANK)
loaned private respondent NICOS Industrial Corporation
(NICOS) sums of money in the total amount of FOUR
MILLION SEVENTY SIX THOUSAND FIVE HUNDRED
EIGHTEEN AND 64/100 PESOS (P4,076,518.64).
Subsequently, NICOS failed to pay back the loan prompting
SOLIDBANK to file a collection case before the Court of
First Instance of Manila, Branch XXIX. The case was
docketed as Civil Case No. 82-11611.
On August 30, 1982, the court in the aforecited case issued
an order of attachment " ... upon the rights, interests and
participation of which defendants NICOS Industrial
Corporation ... may have in Transfer Certificate of Title No.
T-210581 (T-32.505 M) and Transfer Certificate of Title No.
T-10580 (T-32.504 M) (Annexes "B", "B-1", "B-2" and "B-3"
of petition).
On September 1, 1982, pursuant to the writ of attachment
issued by the Court and upon petitioner's posting of
sufficient bond, the Sheriff of Manila levied and attached
the two real properties described by the foregoing order of
attachment,
including
the
buildings
and
other
improvements thereon. Afterwards, the Sheriff sent
68
separate Notices of Levy Upon Realty to the Registrar of

Deeds of Malolos, Bulacan, dated September 1, 1982
requesting him "to make the proper annotation in the
books of your office" by virtue of the order of attachment
dated August 30,1982 issued by the Manila Court in Civil
Case No. 82-11611.
Accordingly, on September 7, 1982, the Registrar of Deeds
of Malolos, Bulacan, pursuant to the request of the Manila
Sheriff, inscribed and annotated the Notices of Levy Upon
Real Property at the back of Transfer Certificates of Title
Nos. T-210581 (T-32.505 M) and T-210580 (T-32.504 M).
Pursuant to the foregoing ng inscription and annotations,
guards were deputized by the Manila Sheriff to secure the
premises of the two attached realties.
A year later, however, on July 11, 1983, the attached
properties which had been mortgaged by NICOS to the
United Coconut Planters Bank (UCPB) on March 11, 1982,
were extrajudicially foreclosed by the latter. As the highest
bidder therein, a certificate of sale was issued to it by the
Sheriff of Bulacan over the subject realties including the
buildings and improvements thereon.
Surprisingly, two transactions occurred soon thereafter,
both on August 29, 1983. First, UCPB sold all of its rights,
interests, and participation over the properties in question
to a certain Manuel Go; Second, Manuel Go sold all the
rights he acquired from UCPB over the same lots on that
very same day to private respondent Golden Star Industrial
Corporation (GOLDEN STAR).
Barely a month later, on October 5, 1983, respondent
NICOS, though fully aware that it still had the right to
redeem the auctioned properties within the one year period
of redemption from July 11, 1983, suddenly executed a
document entitled "Waiver of Right of Redemption" in favor
of respondent GOLDEN STAR.
On September 15, 1983, GOLDEN STAR filed a petition for
the issuance of a writ of possession over the subject
realties before the Regional Trial Court, Branch VI of
Malolos, Bulacan.
On November 4, 1983, the Malolos Court granted GOLDEN
STAR's petition for a writ of possession and issued the writ.
In accordance with these orders, armed men of GOLDEN
STAR forcibly took over the possession of the properties in
dispute from the guards deputized by the Sheriff of Manila
to secure the premises.
Thus on November 21, 1983, petitioner SOLIDBANK, on
the strength of its prior attachment over the lands in
question filed with the Malolos court an omnibus motion to
annul the writ of possession issued to GOLDEN STAR and
to punish for contempt of court the persons who
implemented the writ of possession with the use of force
and intimidation.
The respondents NICOS and GOLDEN STAR, filed
oppositions to the foregoing omnibus motion, the former on
the basis of the waiver of its right of redemption to
GOLDEN STAR, and the latter on its alleged ignorance that
AGUSTIN, E.P.
the lands in question were under custodia legis, having

been attached by the Sheriff of Manila.
On June 9, 1984, the Malolos Court issued an order
denying the omnibus motion, the decretal portion of which
is as follows:
WHEREFORE, the Omnibus Motion of
movant Consolidated Bank and Trust
Corporation to annul the writ of
possession issued by this Court in favor
of Golden Star Industrial Corporation
and to cite for contempt those who
fraudulently secured and unlawfully
implemented the writ of possession is
hereby DENIED for lack of merit. (p. 8 of
the Brief for the Complainant-OppositorAppellant in AC-G.R. CV No. 04398
[p.118, Rollo])
The petitioner SOLIDBANK forthwith interposed an appeal
before the Intermediate Appellate Court arguing inter alia
that the properties were under custodia legis, hence the
extrajudicial foreclosure and the writ of possession were
null and void, and that the right of NICOS to redeem the
auctioned properties had been acquired by SOLIDBANK.
On December 13, 1985, the Intermediate Appellate Court
rendered its assailed decision "finding no merit in this
appeal and affirming in toto the appealed order of June 9,
1984, ruling that "the properties in issue ... were not in
custodia legis at the time of the extrajudicial foreclosure."
The petitioner moved for reconsideration, arguing that its
writ of attachment over the properties in question was duly
registered in the Register of Deeds of Malolos, Bulacan, and
that the right to redeem said properties should be retained
or given back to SOLIDBANK as attaching creditor.
virtue of an order of attachment issued in Civil Case No.

82-11611 dated August 30, 1982, ... upon the rights,
interests, and participation of which defendant NICOS
Industrial Corporation in this case may have in ...
."Transfer Certificate of Title No. T-210581 (T-32.505 M)
and Transfer Certificate of Title No. T-210580 (T-32,505 M).
Secondly, and more significant, the records clearly show
(page 4, Annex "D" of petition) that the Registrar of Deeds
of Malolos, Bulacan, on September 7, 1982, inscribed and
annotated the foregoing Notices of Levy at the back of
Transfer Certificate of Title Nos. 210580 and 210581, to
wit:
TRANSFER CERTIFICATE OF TITLE
No. T-210580 (T-32.504 M)
Entry No. 79524 (M): Kind; NOTICE OF
LEVY UPON REALTY, Executed in favor
of the CONSOLIDATED BANK AND
TRUST CORPORATION (SOLIDBANK);Plaintiff; Conditions: Notice is hereby
given that by virtue of an Order of
Attachment issued by the C.F.I. of
Manila, Branch XXIX, in Civil Case No.
82-11611, all the rights, interest and
participation of NICOS INDUSTRIAL
CORPORATION-Defendant
over
the
herein described lot is hereby levied
upon attached.; Date of Instrument:
September 1, 1982; Date of Inscription:
September 7, 1982 at 2:35.
Meycauayan, Bulacan.
On March 13, 1986, the Intermediate Appellate Court

promulgated its resolution denying the motion for
reconsideration for lack of merit.
Hence this petition for review, on the grounds that
respondent appellate court decided the case contrary to law
and applicable decisions of the Supreme Court, and has
departed from the accepted and usual course of judicial
proceedings as to call for an exercise of the power of
supervision of this Court.
The fundamental question herein, which is determinative of
the other issues, is whether or not the subject properties
were under custodia legis by virtue of the prior annotation
of a writ of attachment in petitioner's favor at the time the
properties were extrajudicially foreclosed.
We rule in the affirmative on the following grounds:
First of all, the records show (specifically Annexes "B," "B1" to "B-3" of the petition) that on September 1, 1982, the
Sheriff of Branch XXIX of the Court of First Instance of
Manila, sent separate Notices of Levy Upon Realty to the
Registrar of Deeds of Malolos Bulacan, requesting him "to
make the proper annotation in the books of your office," "by
69
AGUSTIN, E.P.
C
I
A
o
f
D
e
e
d
s
TRANSFER CERTIFICATE OF TITLE

No. T-210581 (T-32.505 M)
Entry No. 79524 (M); Kind: NOTICE OF
LEVY UPON REALTY, Executed in favor
of THE CONSOLIDATED BANK AND
TRUST CORPORATION (SOLIDBANK)
Plaintiff; Conditions: Notice is hereby
given that by virtue of an Order of
Attachment issued by the C.F.I. of
Manila, Branch XXIX, in Civil Case No.
82-11611, all the rights, interest and
participation of NICOS INDUSTRIAL
CORPORATION Defendants over the
herein described lot is hereby levied
upon attached.; Date of Instrument;
September 1, 1982; Date of Inscription:
September 7, 1982 at 2:35.
Meycauayan, Bulacan.
(
S
G
D
.
)
V
I
O
L
E
T
A
Based on the foregoing evidence on record, the conclusion
R
is clear that the disputed
real properties were under
custodia legis by virtue. of a valid attachment at the time
the same were extrajudicially foreclosed by a third party
mortgagee.
L
I
N
The rule is well settled that when a writ of attachment has
C
been levied on real property or any interest therein
A
belonging to the judgment debtor, the levy thus effected
L
creates a lien which nothing can destroy but its dissolution
L
(Chua Pua Hermanos v. Register of Deeds of Batangas, 50
O
Phil. 670; Government, et. al. v. Mercado, 67 Phil. 409).
G
The foregoing conclusion
A has two necessary consequences.
R
70
AGUSTIN, E.P.
Firstly, it follows that the writ of possession issued by the

Malolos court in favor of respondent GOLDEN STAR is nun
and void ab initio because it interfered with the jurisdiction
of a co-ordinate and co-equal court (See De Leon v.
Salvador, 36 SCRA 567):
While property or money is in custodia
legis, the officer holding it is the mere
hand of the court, his possession is the
possession of the court, and to interfere
with it is to invade the jurisdiction of the
court itself (Gende v. Fleming, 371 N.E.
2d. 191; Bishop v. Atlantic Smokeless
Coal Co., 88F. Supp. 27, 7 CJS 320).
Of equal importance is the fact that the transactions on
which respondent GOLDEN STAR's right to a writ of
possession are based are highly irregular and questionable,
to say the least, considering the following circumstances:
On July 11, 1983, the Sheriff of Bulacan executed a
certificate of sale over the two lots in question in favor of
UCPB.
On August 29, 1983, or about a month and a half later,
UCPB sold its rights, interests and participation over the
lands to Manuel Go.
On that very same day, August 29, 1983, Manuel Go sold
the same properties to respondent GOLDEN STAR.
On October 5, 1983, respondent NICOS which had a one
year right of redemption over the lands in question
executed a "Waiver of Right of Redemption in favor of
respondent GOLDEN STAR." The attempts to bring the
disputed properties out of the petitioner's reach, inspite of
the attachment, are plain and apparent.
Based on the foregoing facts, we find that respondents
NICOS and GOLDEN STAR conspired to defeat petitioner's
lien on the attached properties and to deny the latter its
right of redemption.
It appears that in issuing the writ of possession, the
Malolos court relied on copies of documents (which did not
show the memorandum of encumbrance) submitted to it by
GOLDEN STAR. It was thus led into the error of ruling that
the petitioner's attachment was not properly annotated.
Secondly, it likewise follows that the petitioner has
acquired by operation of law the right of redemption over
the foreclosed properties pursuant to Sec. 6 of Act No.
3135, to wit:
In all such cases in which an
extrajudicial sale is made ... any person
having a lien on the property subsequent
to the mortgage ... may redeem the same
at any time within the term of one year
from and after the date of sale.
It has been held that "an attaching creditor may succeed to
the incidental rights to which the debtor was entitled by
71
reason of his ownership of the property, as for example, a

right to redeem from a prior mortgage" (Lyon v. Stanford, 5
Conn. 541, 7 SJS 505).
The fact that respondent NICOS executed a waiver of right
of redemption in favor of respondent GOLDEN STAR on
October 5, 1983 is of no moment as by that time it had no
more right which it may waive in favor of another,
Finally, GOLDEN STAR argues that even if the attachment
in issue was duly registered and the petitioner has a right
of redemption, the certificate of sale of the lands in
question was registered on September 6, 1983. It claims
that the period to redeem therefore lapsed on September 6,
1984 without the petitioner bank ever exercising any right
of redemption.
This argument is untenable. Well settled is the rule that
the pendency of an action tolls the term of the right of
redemption. Specifically, tills Court in Ong Chua v. Carr,
(53 Phil. 975, 983) categorically ruled that:
xxx xxx xxx
... Neither was it error on the part of the
court to hold that the pendency of the
action tolled the term for the right of
redemption; that is an old and well
established rule.
This was reiterated in Fernandez v. Suplido (96 Phil. 541,
543), as follows:
xxx xxx xxx
... As pointed out in Ong Chua v. Carr,
53 Phil. 975, the pendency of an action
brought in good faith and relating to the
validity of a sale with pacto de retro tolls
the term for the right of redemption. ...
Not only that. It has been held that "under a statute
limiting the time for redemption ... the right of redemption
continues after perfection of an appeal ... until the decision
of the appeal (Philadelphia Mortgage Co. v. Gustus, 75
N.W. 1107).
In the case at bar, the petitioner commenced the instant
action by way of an omnibus motion before the Bulacan
Court on November 21, 1983 or barely two months after
the certificate of sale was registered on September 6, 1983,
well within the one year period of redemption.
WHEREFORE, IN VIEW OF THE FOREGOING, the petition
is granted and judgment is hereby rendered:
1) declaring as valid and binding the levy and attachment
by the Manila Sheriff on the two realties in question
including the buildings and improvements thereon;
2) declaring that petitioner has acquired the right of
redemption over the aforesaid properties which it may
AGUSTIN, E.P.
exercise within one year from notice of entry of judgment in

this case; and
3) declaring as null and void (a) the order of the Bulacan
Court dated November 4, 1983 granting the writ of
possession to respondent GOLDEN STAR, (b) its order of
June 9, 1984 denying the petitioner's omnibus motion, and
(c) the Waiver of Right of Redemption executed by
respondent NICOS in favor of respondent GOLDEN STAR.
SO ORDERED.
Fernan (Chairman), Paras, Padilla, Bidin and Cortes, JJ.,
concur.
72
AGUSTIN, E.P.
3. CLAUDE NEON
ADVERTISING CORP
LIGHTS
vs.
PHIL
EN BANC
[G.R. No. 37682. November 26, 1932.]
CLAUDE NEON LIGHTS, FEDERAL INC.,
U.S.A., Petitioner, v. PHILIPPINE
ADVERTISING CORPORATION and
FRANCISCO SANTAMARIA, Judge of
First Instance of Manila, Respondents.
Gibbs & McDonough for Petitioner.
Courtney Whitney for Respondents.
SYLLABUS
1.
CORPORATIONS;
FOREIGN
AND
DOMESTIC
CORPORATIONS. The words of section 424 of the Code
of Civil Procedure refer to a physical defendant who is
capable of being "arrested" or who is "not residing in the
Philippine Islands." Only by fiction can it be held that a
corporation is "not residing in the Philippine Islands." A
corporation has no home or residence in the sense in which
those terms are applied to natural persons. It can not be
said that every statute applicable to natural persons is
applicable
to
corporations.
2. ID.; ID.; ATTACHMENT OF PROPERTY. There is not
the same reason for subjecting a duly licensed foreign
corporation to the attachment of its property by a plaintiff,
under said section 424, paragraph 2, as may exist in the
case of a natural person not residing in the Philippine
Islands. Corporations, as a rule, are less mobile than
individuals. This is specially true of foreign corporations
that are carrying on business by proper authority in these
Islands.
3. ID.; ID.; ID. Said section 424, paragraph 2, should
not be held applicable to foreign corporations duly licensed
to do business in the Philippine Islands both because the
language and the reason of the statute limit it to natural
persons.
DECISION
BUTTE, J.:
This case is to be determined upon the petition for writ of

certiorari and the demurrer thereto filed by the
respondents. The petition sets up two causes of action: one
attacking the validity of a writ of attachment issued by the
respondent judge on the petition and affidavit of the
respondent Philippine Advertising Corporation, on April 6,
73
1932; the second, attacking the validity of the order of the

respondent judge issued the same day on the petition of
the respondent Philippine Advertising Corporation,
appointing a receiver of the property which was seized by
the sheriff under said writ of attachment.
On April 5, 1932, the respondent Philippine Advertising
Corporation filed suit against the petitioner in the Court of
First Instance of Manila, claiming P300,000 as damages for
alleged breach of the agency contract existing between the
said respondent and the petitioner. At the same time, said
respondent filed in said court an application for writ of
attachment duly verified in which it is stated that the
defendant (petitioner herein) is a foreign corporation having
its principal place of business in the City of Washington,
District of Columbia. It is not alleged in said application
that the defendant, Claude Neon Lights, Inc. (the petitioner
herein) was about to depart from the Philippine Islands
with intent to defraud its creditors or that it was insolvent
or had removed or disposed of its property or was about to
do so with intent to defraud its creditors. The only
statutory ground relied upon in the court below and in this
court for the issuance of the writ of attachment against the
petitioner is paragraph 2 of section 424 of the Code of Civil
Procedure, which provides that a plaintiff may have the
property of the defendant attached "in an action against a
defendant not residing in the Philippine Islands."
On April 6, 1932, the respondent judge issued the writ of
attachment as prayed for, and the sheriff has attached all
the properties of the petitioner in the Philippine Islands. On
the same date, on the ex parte petition and nomination of
the respondent, the respondent judge appointed Manuel C.
Grey receiver of said properties of the petitioner, fixing his
bond at P3,000.
Motions to dissolve said writ of attachment and
receivership were filed in the court below, supported by
affidavits of the attorney in fact for the petitioner in which
it is recited, among other things, that the petitioner is not
indebted to the respondent in any sum whatever nor has it
in any way breached any contracts with the respondent or
at any time interfered in the management of its business in
the Philippine Islands as carried on by its agent, the
respondent, and it has faithfully complied with every
condition of said contract; that the attachment of the
machinery and plants of the petitioner, as well as its other
assets, is highly prejudicial to it as it is unable to proceed
with its business in the Philippine Islands and irreparable
loss will result to it unless such attachment be raised; that
the filing of said suit was malicious, without foundation,
and intended only to injure the petitioner and to depreciate
the value of its holdings in the Philippine Islands. It does
not appear that any answer was made to said motion in
which said allegation were denied or that any refuting
evidence was offered.
On June 20, 1932, the court denied said motions to vacate
the attachment and receivership, declaring that the writ of
attachment conforms to section 424 of the Code of Civil
Procedure.
The petitioner for certiorari prays that the writ of
attachment issued by the respondent judge on April 6,
1932, as well as the order of the same date, appointing
Manuel C. Grey receiver of the property of the petitioner, be
annulled.
The sufficiency of the application for the writ of attachment
AGUSTIN, E.P.
is assailed by the petitioner upon several grounds but we

shall confine ourselves to the consideration of the question
whether or not paragraph 2 of section 424 of the Code of
Civil Procedure is applicable to this petitioner.
The petitioner is a corporation duly organized under the
laws of the District of Columbia; it had complied with all
the requirements of the Philippine laws and was duly
licensed to do business in the Philippine Islands on the
date said writ of attachment was issued. The petitioner was
actively engaged in doing business in the Philippine Islands
and had considerable property therein, which consisted of
its manufacturing plant, machinery, merchandise and a
large income under valuable contracts, all of which
property was in the possession and under the control and
management of the respondent Philippine Advertising
Corporation, as the agent of the petitioner, on the date said
attachment was levied. Considered from a practical and
economic viewpoint, its position in the business
community was indistinguishable from that of a domestic
corporation.
Section 424 of the Code of Civil Procedure under which the
petitioners
property
was
attached,
read
as
follows:jgc:chanrobles.com.ph
"Attachment. A plaintiff may, at the commencement of
his action, or at any time afterwards, have the property of
the defendant attached as security for the satisfaction of
any judgment that may be recovered, unless the defendant
gives security to pay such judgment, in the manner
hereinafter
provided,
in
the
following
cases:jgc:chanrobles.com.ph
"1. In all the case mentioned in section four hundred and
twelve, providing for the arrest of a defendant. But the
plaintiff must make an election as to whether he will ask
for an order of arrest or an order of attachment; he shall
not
be
entitled
to
both
orders;
"2. In an action against a defendant not residing in the
Philippine
Islands."cralaw
virtua1aw
library
It may be observed at the outset that the words of section
424, supra, taken in their literal sense seem to refer to a
physical defendant who is capable of being "arrested" or
who is "not residing in the Philippine Islands." It is only by
a fiction that it can be held that a corporation is "not
residing in the Philippine Islands." A corporation has no
home or residence in the sense in which those terms are
applied to natural persons. For practical purposes, a
corporation is sometimes said, in a metaphorical sense, to
be "a resident" for a certain state or a "citizen" of a certain
country, which is usually the state or country by which or
under the laws of which it was created. But that fiction or
analogy between corporations and natural persons by no
means extends so far that it can be said that every statute
applicable to natural persons is applicable to corporations.
Indeed, within the same jurisdiction a corporation has been
held to be a "citizen" of the state of its creation for the
purpose of determining the jurisdiction of the Federal
courts (Wisconsin v. Pelican Insurance Co., 127 U.S., 265)
but not a "citizen" within the meaning of section 2 of article
4 of the Constitution of the United States which provides
that the citizens of each state shall be entitled to all the
privileges and immunities of citizens of the several states
(Paul v. Virginia, 8 Wall., 169).
The question arises whether this petitioner, a foreign
74
corporation, shall, in a metaphorical sense, be deemed as

"not residing in the Philippine Islands" in the sense in
which that expression would apply to a natural person.
Having regard to the reason for the statute which is the
protection of the creditors of a non-resident, we are of the
opinion that there is not the same reason for subjecting a
duly licensed foreign corporation to the attachment of its
property by a plaintiff under section 424, paragraph 2, as
may exist in the case of a natural person not residing in
the Philippine Islands. The law does not require the latter,
as it does the former, to appoint a resident agent for service
of process; nor to prove to the satisfaction of the
Government before he does business here, as the foreign
corporation must prove, that he "is solvent and in sound
financial condition" (section 68, Act No. 1459, as amended,
the Corporation Law), or to produce evidence of "fair
dealing" (ibid.) . He pays no license fee nor is his business
subject at any time to investigation by the Secretary of
Finance and the Governor-General; nor is his right to
continue to do business revocable by the Government (Cf.
section 71, Act No. 1459 of the Corporation Law). His
books and papers are not liable to examination "at any
time" by the Attorney-General, the Insular Auditor, the
Insular Treasurer, "or any other officer of the Government"
on the order of the Governor-General (section 54, ibid.) . He
is not, like a foreign corporation "bound by all laws, rules
and regulations applicable to domestic corporations." . .
(section 73, ibid.) , which are designed to protect creditors
and the public. He can evade service of summons and
other legal process, the foreign corporation never. (Section
72, ibid.)
Corporations, as a rule, are less mobile than individuals.
This is specially true of foreign corporations that are
carrying on business by proper authority in these Islands.
They possess, as a rule, great capital which is seeking
lucrative and more or less permanent investment in young
and developing countries like our Philippines. Some of
them came here as far back as the Spanish regime and are
still important factors in our financial and industrial life.
They are anything but "fly-by-night" concerns. The latter,
we believe, are effectually excluded from our Islands both
by our laws and by our geographical and economic
situation.
If, as we believe, section 424, paragraph 2, should not be
held applicable to foreign corporations duly licensed to do
business in the Philippine Islands both because the
language and the reason of the statute limit it to natural
persons, we sustain and reinforce the provisions of section
71 of the Corporation Law, Act No. 1459, which provides in
substance that if the Secretary of Finance or the Secretary
of Commerce and Communications and the GovernorGeneral find a duly licensed foreign corporation to be
insolvent or that its continuance in business will involve
probable loss to its creditors, they may revoke its license
and "the Attorney-General shall take such proceedings as
may be proper to protect creditors and the public." Section
71, supra, contemplates that the proceedings instituted by
the Attorney-General shall effect the protection of all
creditors and the public equally. Obviously, the benefit of
that section will be minimized, if not entirely defeated, if a
creditor or a few creditors can obtain privileged liens by
writs of attachment based on the sole allegation, which is
easily and safely made, that the corporation is "not residing
in the Philippine Islands." (Cf. Kuenzle & Streiff v.
Villanueva, 41 Phil., 611.)
AGUSTIN, E.P.
Paragraph 2 of section 424, supra, does not apply to a

domestic corporation. Our laws and jurisprudence indicate
a purpose to assimilate foreign corporations, duly licensed
to do business here, to the status of domestic corporations.
(Cf. Section 73, Act No. 1459, and Marshall-Wells Co. v.
Henry W. Elser & Co., 46 Phil., 70, 76; Yu Cong Eng v.
Trinidad, 47 Phil., 385, 411.) We think it would be entirely
out of line with this policy should we make a
discrimination against a foreign corporation, like the
petitioner, and subject its property to the harsh writ of
seizure by attachment when it has complied not only with
every requirement of law made specially of foreign
corporations, but in addition with every requirement of law
made of domestic corporations. (Section 73, supra.)
It is true that the majority of the states in the American
Union hold the contrary rule. But our situation is obviously
very dissimilar from that of a state in the American Union.
There forty-eight states and the central government, all
creating corporations which do a tremendous interstate
business, are contiguous and separated by imaginary lines.
A higher degree of protection against irresponsible
corporations may be more necessary there than here. We
have no interstate business. Only the central government
grants charters to corporations. But even in the American
Union there is a minority rule which we regard as the
better reasoned and the better suited to our conditions,
both geographical and economical, and more nearly in
harmony with the policy of our law both under the Spanish
regime and since the American occupation. This minority
rule is supported by the following authorities: Brand v.
Auto Service Co. (New Jersey, 1907), 67 Atl., 19, 20; Mellor
v. Edward V. Hartford, Inc. (New Jersey, 1929), 146 Atl.,
206; Charles Friend & Co. v. Goldsmith & Co. (Illinois,
1923), 138 N.E., 185; Fullilove v. Central State Bank
(Louisiana, 1926), 107 So., 590.
In the present instance, a particularly monstrous result
has followed as a consequence of the granting of the writ
attaching all of the property of the petitioner on the sole
allegation that it "is not residing in the Philippine Islands."
As the petitioners business was a going concern, which the
sheriff, who levied the writ, obviously could not manage, it
became necessary on the same day for the court to appoint
a receiver. This receiver, as the demurrer admits, "was and
is an employee working under the president of the
respondent Philippine Advertising Corporation, so that to
all intents and purposes, all the property of the petitioner
in the Philippine Islands was seized and delivered into the
hands
of
the
respondent
Philippine
Advertising
Corporation."cralaw
virtua1aw
library
The prayer of the petitioner is granted. The order and writ
of attachment complained of are annulled and set aside
and the court below is directed to vacate the order
appointing Manuel C. Grey receiver of the property of the
petitioner and to require said Manuel C. Grey to submit his
final report at the earliest practicable date. Costs in both
instances to be borne by the respondent, Philippine
Advertising Corporation. So ordered.
Avancea, C.J., Street, Malcolm, Villamor, Ostrand, VillaReal, Abad Santos, Vickers and Imperial, JJ., concur.
75
AGUSTIN, E.P.
4. ABOITIZ vs. PROVINCIAL SHERIFF

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-35990 June 17, 1981
ABOITIZ & COMPANY, INC., HONORABLE VICENTE N.
CUSI JR., Judge of the Court of First Instance of
Davao, and the PROVINCIAL SHERIFF OF DAVAO DEL
SUR, petitioners,
vs.
COTABATO BUS COMPANY, INC., respondent.
DE CASTRO, J.:
The instant petition stemmed from Civil Case No. 7329 of
the Court of First Instance of Davao (Branch 1) in which a
writ of preliminary attachment was issued ex-parte by the
Court on the strength of an affidavit of merit attached to
the verified complaint filed by petitioner herein, Aboitiz &
Co., Inc., on November 2, 1971, as plaintiff in said case, for
the collection of money in the sum of P 155,739.41, which
defendant therein, the respondent in the instant case,
Cotabato Bus Co., owed the said petitioner.
By virtue of the writ of preliminary attachment, the
provincial sheriff attached personal properties of the
defendant bus company consisting of some buses,
machinery and equipment. The ground for the issuance of
the writ is, as alleged in the complaint and the affidavit of
merit executed by the Assistant Manager of petitioner, that
the defendant "has removed or disposed of its properties or
assets, or is about to do so, with intent to defraud its
creditors."
Respondent company filed in the lower court an "Urgent
Motion to Dissolve or Quash Writ of Attachment" to which
was attached an affidavit executed by its Assistant
Manager, Baldovino Lagbao, alleging among other things
that "the Cotabato Bus Company has not been selling or
disposing of its properties, neither does it intend to do so,
much less to defraud its creditors; that also the Cotabato
Bus Company, Inc. has been acquiring and buying more
assets". An opposition and a supplemental opposition were
filed to the urgent motion. The lower court denied the
motion stating in its Order that "the testimony of Baldovino
Lagbao, witness for the defendant, corroborates the facts in
the plaintiff's affidavit instead of disproving or showing
them to be untrue."
A motion for reconsideration was filed by the defendant bus
company but the lower court denied it. Hence, the
defendant went to the Court of Appeals on a petition for
certiorari alleging grave abuse of discretion on the part of
herein respondent Judge, Hon. Vicente R. Cusi Jr. On
giving due course to the petition, the Court of Appeals
issued a restraining order restraining the trial court from
enforcing further the writ of attachment and from
proceeding with the hearing of Civil Case No. 7329. In its
decision promulgated on October 3, 1971, the Court of
76
Appeals declared "null and void the order/writ of

attachment dated November 3, 1971 and the orders of
December 2, 1971, as well as that of December 11, 1971,
ordered the release of the attached properties, and made
the restraining order originally issued permanent.
The present recourse is an appeal by certiorari from the
decision of the Court of Appeals reversing the assailed
orders of the Court of First Instance of Davao, (Branch I),
petitioner assigning against the lower court the following
errors:
ERROR I
THE COURT OF APPEALS ERRED IN
HASTILY
AND
PERFUNCTORILY
RENDERING, ON OCTOBER 3, 1971, A
DECISION WITHOUT CONSIDERING
MOST OF THE EVIDENCE SUCH THAT
l)
EVEN
AN
IMPORTANT
FACT,
ESTABLISHED
BY
DOCUMENTARY
EVIDENCE AND NOT DENIED BY
RESPONDENT, IS MENTIONED ONLY
AS
A
"CLAIM"
OF
PETITIONER
COMPANY;
2) THE DECISION CONTAINS NO
DISCUSSION AND APPRECIATION OF
THE FACTS AS PROVED, ASSEMBLED
AND PRESENTED BY PETITIONER
COMPANY SHOWING IN THEIR
TOTALITY THAT RESPONDENT HAS
REMOVED, DIVERTED OR DISPOSED
OF ITS BANK DEPOSITS, INCOME AND
OTHER LIQUID ASSETS WITH INTENT
TO
DEFRAUD
ITS
CREDITORS,
ESPECIALLY
ITS
UNSECURED
SUPPLIERS;
3) THE DECISION IGNORES THE
SIGNIFICANCE OF THE REFUSAL OF
RESPONDENT TO PERMIT, UNDER REP.
ACT NO. 1405, THE METROPOLITAN
BANK & TRUST CO. TO BRING, IN
COMPLIANCE WITH A subpoena DUCES
TECUM TO THE TRIAL COURT ALL THE
RECORDS
OF
RESPONDENT'S
DEPOSITS AND WITHDRAWALS UNDER
ITS
CURRENT
AND
SAVINGS
ACCOUNTS
(NOW
NIL)
FOR
EXAMINATION
BY
PETITIONER
COMPANY FOR THE PURPOSE OF
SHOWING DIRECTLY THE REMOVAL,
DIVERSION
OR
DISPOSAL
OF
RESPONDENT'S
DEPOSITS
AND
INCOME WITH INTENT TO DEFRAUD
ITS CREDITORS.
ERROR II
NOT APPRECIATING THE FACTS THAT
RESPONDENT'S BANK DEPOSITS ARE
AGUSTIN, E.P.
NIL AS PROOF WHICH - TOGETHER

WITH RESPONDENT'S ADMISSION OF
AN INCOME OF FROM P10,000.00 to P
14,000.00 A DAY AND THE EVIDENCE
THAT IT CANNOT PRODUCE P 634.00
WITHOUT USING A PERSONAL CHECK
OF ITS PRESIDENT AND MAJORITY
STOCKHOLDER,
AND
OTHER
EVIDENCE SHOWS THE REMOVAL
OR CHANNELING OF ITS INCOME TO
THE LATTER.
ERROR III
NOT APPRECIATING THE RESCUE AND
REMOVAL BY RESPONDENT OF FIVE
ATTACHED BUSES, DURING THE
DEPENDENCY OF ITS MOTION TO
DISSOLVE THE ATTACHMENT IN THE,
TRIAL COURT, AS A FURTHER ACT OF
REMOVAL
OF
PROPERTIES
BY
RESPONDENT
WITH
INTENT
TO
DEFRAUD PETITIONER COMPANY, FOR
WHOSE BENEFIT SAID BUSES HAD
BEEN ATTACHED.
The questions raised are mainly, if not solely, factual
revolving on whether respondent bus company has in fact
removed its properties, or is about to do so, in fraud of its
creditors. This being so, the findings of the Court of
Appeals on said issues of facts are generally considered
conclusive and final, and should no longer be disturbed.
However, We gave due course to the petition because it
raises also a legal question of whether the writ of
attachment was properly issued upon a showing that
defendant is on the verge of insolvency and may no longer
satisfy its just debts without issuing the writ. This may be
inferred from the emphasis laid by petitioner on the fact
that even for the measly amount of P 634.00 payment
thereof was made with a personal check of the respondent
company's president and majority stockholder, and its
debts to several creditors, including secured ones like the
DBP, have remained unpaid, despite its supposed daily
income of an average of P 12,000.00, as declared by its
assistant manager, Baldovino Lagbao. 1
Going forthwith to this question of whether insolvency,
which petitioners in effect claims to have been proven by
the evidence, particularly by company's bank account
which has been reduced to nil, may be a ground for the
issuance of a writ of attachment, the respondent Court of
Appeals correctly took its position in the negative on the
strength of the explicit ruling of this Court in Max
Chamorro & Co. vs. Philippine Ready Mix Concrete
Company, Inc. and Hon. Manuel P. Barcelona. 2
Petitioner, however, disclaims any intention of advancing
the theory that insolvency is a ground for the issuance of a
writ of attachment , 3 and insists that its evidence -is
intended to prove his assertion that respondent company
has disposed, or is about to dispose, of its properties, in
fraud of its creditors. Aside from the reference petitioner
had made to respondent company's "nil" bank account, as
if to show removal of company's funds, petitioner also cited
the alleged non-payment of its other creditors, including
77
secured creditors like the DBP to which all its buses have
been mortgaged, despite its daily income averaging
P12,000.00, and the rescue and removal of five attached
buses.
It is an undisputed fact that, as averred by petitioner itself,
the several buses attached are nearly junks. However,
upon permission by the sheriff, five of them were repaired,
but they were substituted with five buses which were also
in the same condition as the five repaired ones before the
repair. This cannot be the removal intended as ground for
the issuance of a writ of attachment under section 1 (e),
Rule 57, of the Rules of Court. The repair of the five buses
was evidently motivated by a desire to serve the interest of
the riding public, clearly not to defraud its creditors, as
there is no showing that they were not put on the run after
their repairs, as was the obvious purpose of their
substitution to be placed in running condition.
Moreover, as the buses were mortgaged to the DBP, their
removal or disposal as alleged by petitioner to provide the
basis for its prayer for the issuance of a writ of attachment
should be very remote, if not nil. If removal of the buses
had in fact been committed, which seems to exist only in
petitioner's apprehensive imagination, the DBP should not
have failed to take proper court action, both civil and
criminal, which apparently has not been done.
The dwindling of respondent's bank account despite its
daily income of from P10,000.00 to P14,000.00 is easily
explained by its having to meet heavy operating expenses,
which include salaries and wages of employees and
workers. If, indeed the income of the company were
sufficiently profitable, it should not allow its buses to fall
into disuse by lack of repairs. It should also maintain a
good credit standing with its suppliers of equipment, and
other needs of the company to keep its business a going
concern. Petitioner is only one of the suppliers.
It is, indeed, extremely hard to remove the buses,
machinery and other equipments which respondent
company have to own and keep to be able to engage and
continue in the operation of its transportation business.
The sale or other form of disposition of any of this kind of
property is not difficult of detection or discovery, and
strangely, petitioner, has adduced no proof of any sale or
transfer of any of them, which should have been easily
obtainable.
In the main, therefore, We find that the respondent Court
of Appeals has not committed any reversible error, much
less grave abuse of discretion, except that the restraining
order issued by it should not have included restraining the
trial court from hearing the case, altogether. Accordingly,
the instant petition is hereby denied, but the trial court is
hereby ordered to immediately proceed with the hearing of
Civil Case No. 7329 and decide it in accordance with the
law and the evidence. No special pronouncement as to
costs.
SO ORDERED.
AGUSTIN, E.P.
5. PNB vs. PABALAN

Issue:
The petitioner is requesting for certiorari against the writ of
execution authorized by the Hon Judge Pabalan regarding
the transfer of funds amounting to P12,724.66 belonging to
Philippine Virginia Tobacco Administration.
Facts:
Philippine National Bank invoked the doctrine of nonsuability in behalf of PVTA. It is to be admitted that under
the present Constitution, what was formerly implicit as a
fundamental doctrine in constitutional law has been set
forth in express terms: "The State may not be sued without
its consent." In addition, the amount held by said bank is
subject to garnishment.
Held:
The certiorari was dismissed without cost by the Supreme
Court saying that the funds held by PNB is subject for
garnishment, thus, the writ of execution be imposed
immediately. The non-suability clause raised by PVTA
being a government owned corporation was also denied
citing previous decisions held by the Supreme Court
specifically citing that of Manila Hotel Employees
Association vs Manila Hotel Company and to quote 'it is
well-settled that when the government enters into
commercial business, it abandons its sovereign capacity
and is to be treated like any other corporation.

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-33112 June 15, 1978
PHILIPPINE NATIONAL BANK, petitioner,
vs.
HON. JUDGE JAVIER PABALAN, Judge of the Court of
First Instance, Branch III, La Union, AGOO TOBACCO
PLANTERS ASSOCIATION, INC., PHILIPPINE VIRGINIA
TOBACCO ADMINISTRATION, and PANFILO P.
JIMENEZ, Deputy Sheriff, La Union, respondents.
Conrado E. Medina, Edgardo M. Magtalas & Walfrido
Climaco for petitioner.
Felimon A. Aspirin fit respondent Agoo 'Tobacco Planters
Association, Inc.
Virgilio C. Abejo for respondent Phil. Virginia Tobacco
Administration.
FERNANDO, Acting C.J.:
The reliance of petitioner Philippine National Bank in this
certiorari and prohibition proceeding against respondent
Judge Javier Pabalan who issued a writ of execution, 1
followed thereafter by a notice of garnishment of the funds
of respondent Philippine Virginia Tobacco Administration, 2
deposited with it, is on the fundamental constitutional law
doctrine of non-suability of a state, it being alleged that
such funds are public in character. This is not the first
time petitioner raised that issue. It did so before in
Philippine National Bank v. Court of industrial Relations, 3
decided only last January. It did not meet with success,
this Court ruling in accordance with the two previous cases
of National Shipyard and Steel Corporation 4 and Manila
Hotel Employees Association v. Manila Hotel Company, 5
that funds of public corporations which can sue and be
sued were not exempt from garnishment. As respondent
Philippine Virginia Tobacco Administration is likewise a
public corporation possessed of the same attributes, 6 a
similar outcome is indicated. This petition must be
dismissed.
It is undisputed that the judgment against respondent
Philippine Virginia Tobacco Administration had reached the
stage of finality. A writ of execution was, therefore, in order.
It was accordingly issued on December 17, 1970. 7 There
was a notice of garnishment for the full amount mentioned
in such writ of execution in the sum of P12,724,66. 8 In
view of the objection, however, by petitioner Philippine
National Bank on the above ground, coupled with an
inquiry as to whether or not respondent Philippine Virginia
Tobacco Administration had funds deposited with
petitioner's La Union branch, it was not until January 25,
1971 that the order sought to be set aside in this certiorari
proceeding was issued by respondent Judge. 9 Its
dispositive portion reads as follows: Conformably with the
foregoing, it is now ordered, in accordance with law, that
sufficient funds of the Philippine Virginia Tobacco
78
AGUSTIN, E.P.
Administration now deposited with the Philippine National

Bank, La Union Branch, shall be garnished and delivered
to the plaintiff immediately to satisfy the Writ of Execution
for one-half of the amount awarded in the decision of
November 16, 1970." 10 Hence this certiorari and
prohibition proceeding.
As noted at the outset, petitioner Philippine National Bank
would invoke the doctrine of non-suability. It is to be
admitted that under the present Constitution, what was
formerly implicit as a fundamental doctrine in
constitutional law has been set forth in express terms: "The
State may not be sued without its consent." 11 If the funds
appertained to one of the regular departments or offices in
the government, then, certainly, such a provision would be
a bar to garnishment. Such is not the case here.
Garnishment would lie. Only last January, as noted in the
opening paragraph of this decision, this Court, in a case
brought by the same petitioner precisely invoking such a
doctrine, left no doubt that the funds of public corporations
could properly be made the object of a notice of
garnishment. Accordingly, this petition must fail.
sovereign character, so as to render the corporation subject

to the rules of law governing private corporations." 14 It is
worth mentioning that Justice Ozaeta could find support
for such a pronouncement from the leading American
Supreme Court case of united States v. Planters' Bank, 15
with the opinion coming from the illustrious Chief Justice
Marshall. It was handed down more than one hundred fifty
years ago, 1824 to be exact. It is apparent, therefore, that
petitioner Bank could it legally set forth as a bar or
impediment to a notice of garnishment the doctrine of nonsuability.
WHEREFORE, this petition for certiorari and prohibition is
dismissed. No costs.
Barredo, Antonio, Aquino, and Santos, JJ., concur.
Concepcion, Jr., J., is on leave.
1. The alleged grave abuse of discretion, the basis of this

certiorari proceeding, was sought to be justified on the
failure of respondent Judge to set aside the notice of
garnishment of funds belonging to respondent Philippine
Virginia Tobacco Administration. This excerpt from the
aforecited decision of Philippine National Bank v. Court of
Industrial Relations makes manifest why such an argument
is far from persuasive. "The premise that the funds could
be spoken as public character may be accepted in the
sense that the People Homesite and Housing Corporation
was a government-owned entity. It does not follow though
that they were exempt. from garnishment. National
Shipyard and Steel Corporation v. Court of Industrial
Relations is squarely in point. As was explicitly stated in
the opinion of the then Justice, later Chief Justice,
Concepcion: "The allegation to the effect that the funds of
the NASSCO are public funds of the government, and that,
as such, the same may not be garnished, attached or levied
upon, is untenable for, as a government owned and
controlled corporation, the NASSCO has a personality of its
own. distinct and separate from that of the Government. It
has pursuant to Section 2 of Executive Order No. 356,
dated October 23, 1950 ... , pursuant to which The
NASSCO has been established all the powers of a
corporation under the Corporation Law ... ." Accordingly, it
may be sue and be sued and may be subjected to court
processes just like any other corporation (Section 13, Act
No. 1459, as amended.)" ... To repeat, the ruling was the
appropriate remedy for the prevailing party which could
proceed against the funds of a corporate entity even if
owned or controlled by the government." 12
2. The National Shipyard and Steel Corporation decision
was not the first of its kind. The ruling therein could be
inferred from the judgment announced in Manila Hotel
Employees Association v. Manila Hotel Company, decided
as far back as 1941. 13 In the language of its ponente
Justice Ozaeta "On the other hand, it is well-settled that
when the government enters into commercial business, it
abandons its sovereign capacity and is to be treated like
any other corporation. (Bank of the United States v.
Planters' Bank, 9 Wheat. 904, 6 L.ed. 244). By engaging in
a particular business thru the instrumentality of a
corporation, the government divests itself pro hac vice of its
79
AGUSTIN, E.P.

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PROVISIONAL REMEDIES

Plaintiffs have interest in properties in question

Judge Roldan decided to consider the MR and granted the

possession thereof and that the defendants with any legal

But, a WOPI should not be granted to take the property out

A receiver may be appointed to take charge of personal or

1. ADLAWAN vs. TOMOL

ELEAZAR V. ADLAWAN, petitioner,

a sum of money and damages including an ex-parte

The antecedent facts are as follows:

In view of the foregoing, private respondent Aboitiz and

(15) days to elevate the matter to the Appellate Court.

Lapu-Lapu City on July 13, 1982 and the filing of

In the meantime, three (3) Deputy Sheriffs of Cebu

With regard to the replevin case filed by private respondent

As petitioner's Motion for a Bill of Particulars was not

Hence, the present petition for certiorari and mandamus

that same court, to order that said properties be

There is no question that the order dated July 6, 1982 of

two-fold. First, it seizes upon property of an alleged debtor

complaint by Aboitiz and Company, Inc. More importantly,

Based on the above-cited principles, it is obvious that the

Finally, the employment by counsel for private respondent

Concept and Purpose

1. GUZMAN vs. CATOLICO

As to the other two requisites, there is no allegation, either

An affidavit is fatally defective where it fails to

The jurisdiction of attachment proceedings being

2. SPOUSES SALGADO vs. CA

2. ID.; ID.; ID.; REQUISITES FOR ISSUANCE SHALL NOT

Corporation v. Hon. Potenciano Pecson, 90 Phil. 809, this

4. ID.; ID.; ID.; ISSUANCE THEREOF STRICTLY

AQUINO, J., dissenting:chanrob1es virtual 1aw library

disposing or about to do so, with intent to defraud their

satisfaction thereof are liable to be removed beyond the

million two hundred fifty thousand pesos as moral and

AQUINO, J., dissenting:chanrob1es virtual 1aw library

The bank opposed the motion. In a manifestation dated

I dissent with deference to Justice Escolins opinion. On

I am of the opinion that the writ of attachment was

The bank countered that it did not resort to foreclosure

Nature and Scope:

THE UNITED STATES, Plaintiff-Appellee, v. PONCIANO

This appeal is brought to this Court to reverse a judgment

adjudging the defendant guilty of the crime of murder and

question the accused admitted that he had the misfortune

acting. Upon the whole we incline to the opinion that the

and it shall not be less than one third of the probable

It remains to consider whether or not the attachment can

MALCOLM, J., dissenting:chanrob1es virtual 1aw library

incident to the commission of the homicide. In my

Republic of the Philippines

2. GENERAL vs. DE VENECIA

July 30, 1947

LUIS F. GENERAL, petitioner,

(Sgd.) LUIS F. GENERAL

It prayed additionally for preliminary attachment of

the debt being within the terms

It is our view that, upon objection by the debtor, no court

Strict Compliance with the Rule

suits against him for collection of unpaid

Under date of February 7, 1976, private