G.R. No.

71917 June 30, 1987

BELISLE INVESTMENT & FINANCE CO., INC. and SMITH, BELL & CO.,
INC., vs. STATE IN INVESTMENT HOUSE, INC., Et. Al.
FACTS
In November 1982 and May 1983 State Investment House, Inc. (HOUSE, for
short) and Belisle Investment and Finance Co., Inc. (FINANCE, for short),
executed agreements whereby the former agreed to extend financial assistance
to the latter, who in turn shall execute in favor of HOUSE promissory notes to
evidence its indebtedness under each availment.
Smith, Bell & Co., Inc., owner of 93% of the outstanding stock of FINANCE,
executed in favor of HOUSE Comprehensive Surety Agreements whereby Smith,
Bell guaranteed jointly and severally with FINANCE the full and punctual
payment at maturity to HOUSE of any and all such instruments, loans,
advances, credits and/or other obligations and also any and all other
indebtedness of every kind which together with any and all expenses, interests
or penalties which may be incurred by HOUSE in collecting all or any such
instruments or other indebtedness or obligations.
Smith, Bell also executed a Letter of Conformity, confirming that it is in fact the
owner of the abovementioned shares of stock and that it has full knowledge of
the obligations being undertaken by FINANCE with HOUSE.
On May 27 and August 27, 1984, FINANCE failed to pay its obligations with
HOUSE despite demands. As of October 10, 1984, the obligations of FINANCE
remaining outstanding and unpaid, amounted to P6,838,358.00.
On December 6, 1984, a complaint with preliminary attachment was filed by
HOUSE against FINANCE and Smith, Bell & Co., Inc. with the Regional Trial
Court of Manila, Branch 49.. Acting on the prayer for writ of preliminary
attachment, respondent Judge issued an Order directing the Branch Clerk of
Court to receive plaintiff's evidence on the application for writ of preliminary
attachment to be enforced against the properties of defendants (petitioners

herein) not exempt from execution to the extent of P6,838,358.00 the amount
claimed in plaintiff's complaint. On January 29, 1985, an order of attachment
was issued and addressed to public respondents, Deputy Sheriffs Gerry C.
Duncan and Germiliano G. Tengco, who were directed to attach real and
personal properties, of the defendants not exempt from execution. On January
31, 1985, personal properties of petitioner FINANCE and the real and personal
properties of Smith, Bell & Co., Inc. were levied upon.
On January 31, 1985, petitioners filed a motion to discharge attachment and
posted a counterbond in the amount of P6,838,358.00.
ISSUE
Is the issuance of Writ of Prelimnary Attachement proper without affording
defendant the benefit of notice and hearing proper?
RULING
As correctly found by the Court of Appeals, no grave abuse of discretion can be
ascribed to respondent Judge either in the issuance of the writ of attachment
without notice to petitioner petitioners as there is nothing in the Rules of Court
which makes notice and hearing indispensable and mandatory requisites in the
issuance of a writ of attachment (Filinvest Credit Corporation vs. Relova, 117
SCRA 420) or in the failure of respondent Judge to immediately restrain the
enforcement of the writ of preliminary attachment upon petitioners' posting of
a counterbond for indeed, the rules and jurisprudence require that no
preliminary injunction shall issue without hearing. In fact the issuance of
injunction ex parte is discouraged and the Court has repeatedly held that
preliminary injunction is an extra ordinary peremptory remedy that should be
dispensed with circumspection, and both sides should first be heard whenever
possible (Ramos vs. Court of Appeals, 95 SCRA 360 [1980]; Palaman Lumber &
Plywood Co., Inc., et al. vs. Arranz, et al., L-27106, 22 SCRA 1194 [1968]).
As correctly found by the Court of Appeals, no grave abuse of discretion can be
ascribed to respondent Judge either in the issuance of the writ of attachment
without notice to petitioner petitioners as there is nothing in the Rules of Court

which makes notice and hearing indispensable and mandatory requisites in the
issuance of a writ of attachment (Filinvest Credit Corporation vs. Relova, 117
SCRA 420) or in the failure of respondent Judge to immediately restrain the
enforcement of the writ of preliminary attachment upon petitioners' posting of
a counterbond for indeed, the rules and jurisprudence require that no
preliminary injunction shall issue without hearing. In fact the issuance of
injunction ex parte is discouraged and the Court has repeatedly held that
preliminary injunction is an extra ordinary peremptory remedy that should be
dispensed with circumspection, and both sides should first be heard whenever
possible (Ramos vs. Court of Appeals, 95 SCRA 360 [1980]; Palaman Lumber &
Plywood Co., Inc., et al. vs. Arranz, et al., L-27106, 22 SCRA 1194 [1968]).
G.R. No. 93262 December 29, 1991
DAVAO LIGHT & POWER CO., INC.,
vs. THE COURT OF APPEALS, Et. al.
FACTS
1.

On May 2, 1989 Davao Light & Power Co., Inc. (hereafter, simply Davao

Light) filed a verified complaint for recovery of a sum of money and damages
against Queensland Hotel, etc. and Teodorico Adarna (docketed as Civil Case
No. 19513-89). The complaint contained an ex parte application for a writ of
preliminary attachment.
2.

On May 3, 1989 Judge Nartatez, , issued an Order granting the ex

parte application and fixing the attachment bond at P4,600,513.37.

3.

On May 11, 1989 the attachment bond having been submitted by Davao

Light, the writ of attachment issued.

4.

On May 12, 1989, the summons and a copy of the complaint, as well as

the writ of attachment and a copy of the attachment bond, were served on
defendants Queensland and Adarna; and pursuant to the writ, the sheriff
seized properties belonging to the latter.

5. On September 6, 1989, defendants Queensland and Adarna filed a motion to

discharge the attachment for lack of jurisdiction to issue the same because at
the time the order of attachment was promulgated (May 3, 1989) and the
attachment writ issued (May 11, 1989), the Trial Court had not yet acquired
jurisdiction over the cause and over the persons of the defendants.
6.

On September 14, 1989, Davao Light filed an opposition to the motion to

discharge attachment.
7.

On September 19, 1989, the Trial Court issued an Order denying the

motion to discharge.
8. This Order of September 19, 1989 was successfully challenged by
Queensland and Adarna in a special civil action of certiorari instituted by them
in the Court of Appeals. The Order was, as aforestated, annulled by the Court
of Appeals in its Decision of May 4, 1990. The Appellate Court's decision closed
with the following disposition:

The Orders dated May 3, 1989 granting the issuance of a writ of preliminary
attachment, dated September 19, 1989 denying the motion to discharge
attachment;

dated

November

7,

1989

denying

petitioner's

motion

for

reconsideration; as well as all other orders emanating therefrom, specially the

Writ of Attachment dated May 11, 1989 and Notice of Levy on Preliminary
Attachment dated May 11, 1989, are hereby declared null and void and the
attachment hereby ordered DISCHARGED.

ISSUE
Whether or not a writ of preliminary attachment may issue ex parte against a
defendant before acquisition of jurisdiction of the latter's person by service of
summons or his voluntary submission to the Court's authority.

RULING

YES. 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 the 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 this period should
be dependant on, or held in suspension until, the actual obtention of
jurisdiction over the defendant's 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 subjectmatter or nature of the action, or the res or object hereof.
A preliminary attachment may be defined as the provisional remedy in virtue of
which a plaintiff or other party may, at the commencement of the action or at
any time thereafter, have the property of the adverse party taken into the
custody of the court as security for the satisfaction of any judgment that may
be recovered. It is a remedy which is purely statutory in respect of which the
law requires a strict construction of the provisions granting it. Withal no
principle, statutory or jurisprudential, prohibits its issuance by any court
before acquisition of jurisdiction over the person of the defendant.
Rule 57 in fact speaks of the grant of the remedy "at the commencement of the
action or at any time thereafter." The phase, "at the commencement of the
action," obviously refers to the date of the filing of the complaint
which, as above pointed out, is the date that marks "the commencement
of the action;" and the reference plainly is to a time before summons is
served on the defendant, or even before summons issues . What the rule is
saying quite clearly is that after an action is properly commenced by the
filing of the complaint and the payment of all requisite docket and other
fees the plaintiff may apply for and obtain a writ of preliminary
attachment upon 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-party claim) 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.
In Toledo v. Burgos, this Court ruled that a hearing on a motion or application
for preliminary attachment is not generally necessary unless otherwise directed
by the Trial Court in its discretion.
And in Filinvest Credit Corporation v. Relova,the Court declared that "(n)othing
in the Rules of Court makes notice and hearing indispensable and mandatory
requisites for the issuance of a writ of attachment." The only pre-requisite is
that the Court be satisfied, upon consideration of "the affidavit of the applicant
or of some other person who personally knows the facts, that a sufficient cause
of action exists, that the case is one of those mentioned in Section 1 . . . (Rule
57), that there is no other sufficient security for the claim sought to be
enforced by the action, and that the amount due to the applicant, 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 (of attachment) is granted above all legal
counterclaims." If the court be so satisfied, the "order of attachment shall be
granted,"

and the writ shall issue upon the applicant's posting of "a bond

executed to the adverse party in an amount to be fixed by the judge, not

exceeding the plaintiffs claim, conditioned that the latter will pay all the costs
which may be adjudged to the adverse party and all damages which he may
sustain by reason of the attachment, if the court shall finally adjudge that the
applicant was not entitled thereto."
For the guidance of all concerned, the Court reiterates and reaffirms the
proposition that writs of attachment may properly issue ex parte provided
that the Court is satisfied that the relevant requisites therefor 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.
G.R. No. 125027, 12 August 2002,
Anita Mangila vs. Court of Appeals
FACTS:
Petitioner contracted the freight forwarding services of private respondent for
shipment of petitioners products to Guam where the petitioner maintains an
outlet.
On the first shipment, petitioner requested the private respondent to pay the
freight. However, for the next three shipments, petitioner failed to pay private
respondent shipping charges. Despite several demand, petitioner never paid the
private respondent. Thus, the private respondent prompted to file a civil case
the defendant.
The Sheriff on his Return showed that summons was not served petitioner.
According to the Sheriff, he was informed that the petitioner transferred her
residence. The Sheriff soon learned that petitioner had left the Philippines for
Guam.
Private Respondent construed the petitioners departure as the latters intent to
defraud her creditors. Such event then prompted the Private Respondent filed a
Motion for Preliminary Attachment.
ISSUE:
Whether the Respondent Court erred in not holding that the writ of attachment
was improperly issued and served
RULING:
The crux of petitioners arguments rests on the question of the validity of the
writ of attachment. Because of failure to serve summons on her before or

simultaneously with the writs implementation, petitioner claims that the trial
court had not acquired jurisdiction over her person and thus the service of the
writ is void.
As a preliminary note, a distinction should be made between issuance and
implementation of the writ of attachment. It is necessary to distinguish
between the two to determine when jurisdiction over the person of the
defendant should be acquired to validly implement the writ. This distinction is
crucial in resolving whether there is merit in petitioners argument.
This Court has long settled the issue of when jurisdiction over the person of
the defendant should be acquired in cases where a party resorts to provisional
remedies. A party to a suit may, at any time after filing the complaint, avail of
the provisional remedies under the Rules of Court. Specifically, Rule 57 on
preliminary attachment speaks of the grant of the remedy at the
commencement of the action or at any time thereafter. This phrase refers
to the date of filing of the complaint which is the moment that marks the
commencement of the action. The reference plainly is to a time before
summons is served on the defendant, or even before summons issues.
In Davao Light & Power Co., Inc. v. Court of Appeals, this Court clarified the
actual time when jurisdiction should be had:
It goes without saying that whatever be the acts done by the Court
prior to the acquisition of jurisdiction over the person of defendant
- issuance of summons, order of attachment and writ of
attachment - these do not and cannot bind and affect the
defendant until and unless jurisdiction over his person is
eventually obtained by the court, either by service on him of
summons or other coercive process or his voluntary submission to
the courts authority. Hence, when the sheriff or other proper
officer commencesimplementation of the writ of attachment, it is
essential that he serve on the defendant not only a copy of the
applicants affidavit and attachment bond, and of the order of
attachment, as explicitly required by Section 5 of Rule 57, but also
the summons addressed to said defendant as well as a copy of the
complaint xxx. (Emphasis supplied.)

Furthermore, we have held that the grant of the provisional remedy of

attachment 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 be first obtained. However, once the implementation of the writ
commences, 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 the instant case, the Writ of Preliminary Attachment was issued on
September 27, 1988 and implemented on October 28, 1988. However, the
alias summons was served only on January 26, 1989 or almost three
months after the implementation of the writ of attachment.
The trial court had the authority to issue the Writ of Attachment on September
27 since a motion for its issuance can be filed at the commencement of the
action. However, on the day the writ was implemented, the trial court should
have, previously or simultaneously with the implementation of the writ,
acquired jurisdiction over the petitioner. Yet, as was shown in the records of the
case, the summons was actually served on petitioner several months after the
writ had been implemented.
G.R. No. 107303 February 21, 1994
EMMANUEL C. OATE and ECON HOLDINGS CORPORATION, petitioners,
vs.
HON. ZUES C. ABROGAR, as Presiding Judge of Branch 150 of the
Regional Trial Court of Makati, and SUN LIFE ASSURANCE COMPANY OF
CANADA, respondents.
G.R. No. 107491 February 21, 1994
BRUNNER DEVELOPMENT CORPORATION, petitioner,
vs.

HON. ZUES C. ABROGAR, as Presiding Judge of Branch 150 of the

Regional Trial Court of Makati, and SUN LIFE ASSURANCE COMPANY OF
CANADA, respondents.
FACTS
On December 23, 1991, respondent Sun Life Assurance Company of Canada
(Sun Life, for brevity) filed a complaint for a sum of money with a prayer for the
immediate issuance of a writ of attachment against petitioners,
The following day, December 24, 1991, respondent Judge issued an order
granting the issuance of a writ of attachment, and the writ was actually
issued on December 27, 1991.
On January 3, 1992, upon Sun Life's ex-parte motion, the trial court amended
the writ of attachment to reflect the alleged amount of the indebtedness. That
same

day,

Deputy

Sheriff

Arturo

C.

Flores,

accompanied

by

representative of Sun Life, attempted to serve summons and a copy of the

amended writ of attachment upon petitioners at their known office
address at 108 Aguirre St., Makati but was not able to do so since there was no
responsible officer to receive the same.

Nonetheless, Sheriff Flores

proceeded, over a period of several days, to serve notices of garnishment

upon several commercial banks and financial institutions, and levied on
attachment a condominium unit and a real property belonging to
petitioner Oate.

Summons was eventually served upon petitioners on January 9, 1992,

while defendant Dio was served with summons on January 16, 1992.

On

January

21,

1992,

petitioners

Discharge/Dissolve Writ of Attachment."

filed

an

"Urgent

Motion

to

On February 6, 1992, respondent Judge issued an order (1) denying

petitioners' and the co-defendants' motion to discharge the amended writ
of attachment, (2) approving Sun Life's additional attachment, (3) granting
Sun Life's motion to examine the BPI account, and (4) denying petitioners'
motion to nullify the proceedings of January 23, 1992.
ISSUE
Whether or not respondent Judge had acted with grave abuse of discretion
amounting to lack or in excess of jurisdiction in issuing ex parte the
original and amended writs of preliminary attachment and the corresponding
notices of garnishment and levy on attachment since the trial court had not
yet acquired jurisdiction over them

RULING
petition is unmeritorious.
Petitioners argue that the enforcement of the writ was invalid since it
undisputedly preceded the actual service of summons by six days at most.
Petitioners cite the decisions in Sievert vs. Court of Appeals, et al. 6 and BAC
Manufacturing and Sales Corp. vs. Court of Appeals, et al., 7 wherein this
Court held that enforcement of the writ of attachment can not bind the
defendant in view of the failure of the trial court to acquire jurisdiction over the
defendant through either summons or his voluntary appearance.
We do not agree entirely with petitioners. True, this Court had held in a
recent decision that the enforcement of writ of attachment may not
validly be effected until and unless proceeded or contemporaneously
accompanied by service of summons.
But we must distinguish the case at bar from the Sievert and BAC
Manufacturing cases. In those two cases, summons was never served upon
the defendants. The plaintiffs therein did not even attempt to cause
service of summons upon the defendants, right up to the time the cases

went up to this Court. This is not true in the case at bar. The records
reveal that Sheriff Flores and Sun Life did attempt a contemporaneous
service of both summons and the writ of attachment on January 3, 1992,
but we stymied by the absence of a responsible officer in petitioners'
offices. Note is taken of the fact that petitioners Oate and Econ Holdings
admitted in their answer

that the offices of both Brunner Development

Corporation and Econ Holdings were located at the same address and that
petitioner Oate is the President of Econ Holdings while petitioner Dio is the
President of Brunner Development Corporation as well as a stockholder and
director of Econ Holdings.
Thus, an exception to the established rule on the enforcement of the writ
of attachment can be made where a previous attempt to serve the
summons and the writ of attachment failed due to factors beyond the
control of either the plaintiff or the process server, provided that such
service is effected within a reasonable period thereafter.
Several reasons can be given for the exception. First, there is a possibility
that a defendant, having been alerted of plaintiffs action by the attempted
service of summons and the writ of attachment, would put his properties
beyond the reach of the plaintiff while the latter is trying to serve the summons
and the writ anew. By the time the plaintiff may have caused the service of
summons and the writ, there might not be any property of the defendant left to
attach.
Second, the court eventually acquired jurisdiction over the petitioners six days
later. To nullify the notices of garnishment issued prior thereto would again
open the possibility that petitioners would transfer the garnished monies while
Sun Life applied for new notices of garnishment.
Third, the ease by which a writ of attachment can be obtained is counterbalanced by the ease by which the same can be discharged: the defendant can
either make a cash deposit or post a counter-bond equivalent to the value of
the property attached. 10 The petitioners herein tried to have the writ of
attachment discharged by posting a counter-bond, the same was denied by

respondent Judge on the ground that the amount of the counter-bond was less
than that of Sun Life's bond.