WALTER E. OLSEN & CO. vs. WALTER E.

OLSEN The appellate court has the power to revoke or confirm said order, in
G.R. No. L-23237 November 14, 1925 like manner as a judgment on the merits; because it is a ruling to
which an exception may be taken, and therefore is subject to review
FACTS: in an appeal by bill of exceptions. (Secs. 141-143, Act No. 190.) The
fact that section 441 of the Code of Civil Procedure does not provide
any remedy against the granting or denial of a motion for the
Respondent Walter E. Olsen, was the president-treasurer and general
annulment of a writ of preliminary attachment, except in case of
manager of petitioner corporation. He exercised direct and almost
excess of jurisdiction, does not confer upon said order a final and
exclusive supervision over its function, funds and books of account
irrevocable character, taking it out from the general provisions as to
up until August 1921.
appeal and review, for a special provision is necessary for that
purpose.
During that time he has been taking money of the corporation
without being duly authorized to do so either by the board of
directors or by the by-laws, the money taken by him having
amounted to the considerable sum of P66,207.62. Of this sum,
P19,000 was invested in the purchase of the house and lot, which was
now under attachment in this case, and P50,000 in the purchase of
500 shares of stock of Prising at the price of P100 per share for
himself and Marker. A few days afterwards, he began to sell the
ordinary shares of the corporation for P430 each.

To justify his conduct, respondent alleged that the withdrawal of the

funds of the corporation for his personal use was made in his current
account with said corporation, in whose treasury he deposited his
own money and the certificates of title of his shares, as well as of his
estate, and that at the first meeting of the stockholders, which took
place on February 1, 1919, a statement of his account with a debit
balance was submitted and approved.

Respondent was ordered by the Court of First Instance of Manila to

pay petitioner corporation the sum of P66,207.62 with legal interest
thereon at a rate of 6% per annum from February 1, 1923, the date
of the filing of the complaint, up until full payment and the costs.

Respondent appealed the decision of the trial court, further alleging

that it failed to set aside the writ of preliminary attachment issued by
it ex parte.

ISSUE:

WON an order denying a motion for the annulment of a preliminary

attachment may be reviewed through an appeal.

RULING:

NO. The preliminary attachment is an auxiliary remedy the granting

of which lies within the sound discretion of the judge taking
cognizance of the principal case upon whose existence it depends.
The order of the judge denying a motion for the annulment of a writ
of preliminary attachment, being of an incidental or interlocutory and
auxiliary character, cannot be the subject of an appeal independently
from the principal case, because the procedural law now in force
then, authorizes an appeal only from a final judgement which gives
an end to the litigation. This lack of ordinary remedy through an
appeal does not mean, however, that any excess a lower court may
commit in the exercise of its jurisdiction is without remedy; because
there are the especial remedies, such as certiorari, for the purpose.

While it is true that an order denying a motion for the annulment of

a preliminary attachment is not subject to review through an appeal
independently from the principal case, it not consisting a final order,
yet when the writ of preliminary attachment becomes final by virtue
of a final judgment rendered in the principal case, said writ is subject
to review jointly with the judgment rendered in the principal case
through an ordinary appeal.
SUMMIT TRADING AND DEVELOPMENT CORPORATION vs. JUDGE
HERMINIO AVENDANO
G.R. No. L-60038 March 18, 1985
FACTS:
Private respondents Segundo Pilipino and Edgardo Mindo acquired
two registered lots in Barrio San Vicente, San Pedro Laguna. The titles
of the lots contain the annotation that should they sell the lots, they
have the “right to redeem the lots within 5 years rom the date of the
sale.”
Pilipina and Mindo sold the lots for P16,000 and P12,000 to Gavin
Ortega on February 14 and April 19, 1977. They retained possession
of the to lots which are riceland, and became tenants thereof.
At the instant of Ortega, the annotation was cancelled by respondent
judge because the lots in his September 24, 1979 order because the
said lots would be converted into commercial, industrial or
residential sites; that conversion has not yet taken place, and at the
present the two are still ricelands. Subsequently, on November 14,
1979, Ortega sold the lots for P16,000 and P11,000 to petitioner
Summit Trading.
While Summit Trading is technically correct in contending that there
was no strict compliance with section 13, we cannot close our eyes
to the realities of the situation. Under the facts of this case,
Saquilayan, being the secretary of the president (whose contact with
the outside world is normally through his secretary), may be regarded
as an "agent" within the meaning of section 13.
Hence summons was validly served upon Summit Trading. Its
negligence in not answering the complaint was inexcusable. In fact,
up to this time, Summit Trading has not bothered to state its defenses
to the action nor stated whether it has a meritorious case warranting
the setting aside of the default judgment.
In the instant case, service was made on the president's secretary
who could have easily notified the president that an action was filed
against the corporation just as she had apprised him of the judgment
in this case.

On August 10, 1981, or within the five-year period, Pilipinia and

Mindo filed a complaint against Ortega and Summit Trading for the
redemption or repurchase of the two lots. Ortega failed to file an
answer and was declared in default along with Summit Trading.

Respondent Judge, in his judgment by default, gave Pilpina and

MIndo 15 days from notice to redeem the lots for the original
purchase price sold to Ortega, and ordered Summit Trading toe
execute the corresponding deeds of sale and surrender the Torrens
titles.

The default judgment was rendered on the assumption that Summit

Trading was duly summoned through its secretary, who received the
summons on August 28, 1981. A copy of the judgment was also
served on her on November 13, 1981, when in fact she received the
summons as secretary of Summit Trading President Virgilio Balaguer.
Thus, Summit Trading filed a Motion for Reconsideration 19 days
after on the ground that jurisdiction over it was not acquired.

ISSUE:

Whether or not jurisdiction over petitioner Summit Trading was

validly acquired.

RULING:

YES. Sec. 13, Rule 14 of the Rules of Court which provides:

SEC. 13. Service upon private domestic corporation or partnership.-If

the defendant is a corporation organized under the laws of the
Philippines or a partnership duly registered, service may be made on
the president, manager, secretary, cashier, agent, or any of its
directors.

It is true that Saquilayan is not among the persons mentioned in

section 13. However, she, being under the control of Summit Trading,
has not explained what she has done with the summons and
complaint. The logical assumption is that she delivered it to her boss,
the president of Summit Trading. As already stated, she received a
copy of the decision and Summit Trading became aware of it. Summit
Trading's motion for reconsideration was denied.