Sunteți pe pagina 1din 9

PROVREM – Atty Tiu (Rule 57, Section 2 FT)

G.R. No. 84034 December 22, 1988 writ of preliminary attachment may issue upon filing of the
complaint even prior to issuance of the summons. 3

ALBERTO SIEVERT, petitioner,


vs. The two (2) assignments of error relate to the single issue which we perceive to be at
COURT OF APPEALS, HON. JUDGE ARTEMON D. LUNA and AURELIO stake here, that is, whether a court which has not acquired jurisdiction over the person
CAMPOSANO, respondents. of the defendant in the main case, may bind such defendant or his property by issuing
a writ of preliminary attachment.

On 18 May 1988 petitioner Alberto Sievert a citizen and resident of the Philippines
received by mail a Petition for Issuance of a Preliminary Attachment filed with the Both the trial court and the Court of Appeals held that the defendant may be bound by
Regional Trial Court of Manila Branch 32 in Civil Case No. 88-44346. Petitioner had a writ of preliminary attachment even before summons together with a copy of the
not previously received any summons and any copy of a complaint against him in complaint in the main case has been validly served upon him.
Civil Case No. 88-44346.

We are unable to agree with the respondent courts.


On the day set for hearing of the Petition for a Preliminary Writ of Attachment,
petitioner's counsel went before the trial court and entered a special appearance for the
limited purpose of objecting to the jurisdiction of the court. He simultaneously filed a There is no question that a writ of preliminary attachment may be applied for a
written objection to the jurisdiction of the trial court to hear or act upon the Petition plaintiff "at the commencement of the action or at any time thereafter" in the cases
for Issuance of a Preliminary Writ of Attachment. In this written objection, petitioner enumerated in Section 1 of Rule 57 of the Revised Rules of Court. The issue posed in
prayed for denial of that Petition for lack of jurisdiction over the person of the this case, however, is not to be resolved by determining when an action may be
petitioner (defendant therein) upon the ground that since no summons had been served regarded as having been commenced, a point in time which, in any case,
upon him in the main case, no jurisdiction over the person of the petitioner had been is not necessarily fixed and Identical regardless of the specific purpose for which the
acquired by the trial court. deter. nation is to be made. The critical time which must be Identified is, rather, when
the trial court acquires authority under law to act coercively against the defendant or
his property in a proceeding in attachment. We believe and so hold that critical time is
The trial court denied the petitioner's objection and issued in open court an order the time of the vesting of jurisdiction in the court over the person of the defendant in
which, in relevant part, read as follows: the main case.

Under Section 1, Rule 57, Rules of Court, it is clear that a


plaintiff or any proper party may "... at the commencement of Attachment is an ancillary remedy. It is not sought for its own sake but rather to enable the attachin
the action or at any time thereafter, have the property of the to be granted in the main or principal action . 4 A court which has not acquired jurisdiction over th
adverse party attached as the security for the satisfaction of whether in the main case or in any ancillary proceeding such as attachment proceedings. The servic
any judgment ..." This rule would overrule the contention the prior or simultaneous service of summons and a copy of the complaint in the main case — and
that this Court has no jurisdiction to act on the application, course confer jurisdiction upon the issuing court over the person of the defendant.
although if counsel for defendant so desire, she is given five Ordinarily, the prayer in a petition for a writ of preliminary attachment is embodied or
(5) days from today within which to submit her further incorporated in the main complaint itself as one of the forms of relief sought in such
position why the writ should not be issued, upon the receipt complaint. Thus, valid service of summons and a copy of the complaint will in such
of which or expiration of the period, the pending incident case vest jurisdiction in the court over the defendant both for purposes of the main
shall be considered submitted for resolution. (Underscoring case and for purposes of the ancillary remedy of attachment. In such case, notice of the
in the original) 1 main case is at the same time notice of the auxiliary proceeding in attachment. Where,
however, the petition for a writ of preliminary attachment is embodied in a discrete
Thereupon, on the same day, petitioner filed a Petition for certiorari with the Court of pleading, such petition must be served either simultaneously with service of
summons and a copy of the main complaint, or after jurisdiction over the defendant
Appeals. On 13 July 1988, the respondent appellate court rendered a decision, notable
has already been acquired by such service of summons. Notice of the separate
principally for its brevity, dismissing the Petition. The relevant portion of the Court of
attachment petition is not notice of the main action. Put a little differently, jurisdiction
Appeals' decision is quoted below:
whether ratione personae or ratione materiae in an attachment proceeding is ancillary
to jurisdiction ratione personae or ratione materiae in the main action against the
The grounds raised in this petition state that the court a defendant. If a court has no jurisdiction over the subject matter or over the person of
quo had not acquired jurisdiction over defendant (now the defendant in the principal action, it simply has no jurisdiction to issue a writ of
petitioner) since no summons had been served on him, and preliminary attachment against the defendant or his property.
that respondent Judge had committed a grave abuse of
discretion in issuing the questioned order without
It is basic that the requirements of the Rules of Court for issuance of preliminary
jurisdiction.
attachment must be strictly and faithfully complied with in view of the nature of this
provisional remedy. In Salas v. Adil, 5 this Court described preliminary attachment as
In short, the issue presented to us is whether respondent —
Judge may issue a writ of preliminary attachment against
petitioner before summons is served on the latter.
a rigorous remedy which exposes the debtor to humiliation
and annoyance, such [that] it should not be abused as to
We rule for respondent Judge. 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
Under Sec. 1, Rule 57, it is clear that, at the commencement in excess of his jurisdiction and the writ so issued shall be
of the action, a party may have the property of the adverse null and void. (Emphasis supplied ) 6
party attached as security. The resolution of this issue
depends, therefore, on what is meant by "Commencement of
the action." Moran, citing American jurisprudence on this The above words apply with greater force in respect of that most fundamental of
point, stated thus: "Commencement of action. — Action is requisites, the jurisdiction of the court issuing attachment over the person of the
commenced by filing of the complaint, even though defendant.
summons is not issued until a later date." (Comment on the
Rules of Court, Vol. I, p. 150, 1979). Thus, a writ of
preliminary attachment may issue upon filing of the In the case at bar, the want of jurisdiction of the trial court to proceed in the main case
complaint even before issuance of the summons. against the defendant is quite clear. It is not disputed that neither service of summons
with a copy of the complaint nor voluntary appearance of petitioner Sievert was had in
this case. Yet, the trial court proceeded to hear the petition for issuance of the writ.
WHEREFORE, for lack of merit, the petition is hereby This is reversible error and must be corrected on certiorari.
denied and, accordingly, dismissed. (Emphasis supplied) 2
WHEREFORE, the Petition for Review on certiorari is GRANTED due course and the
The petitioner is now before this Court on a Petition for Review on Certiorari, Order of the trial court dated 20 May 1988 and the Decision of the Court of Appeals
assailing the above-quoted decision of the Court of Appeals. The petitioner assigns dated 13 July 1988 are hereby SET ASIDE and ANNULLED. No pronouncement as
two (2) errors: to costs.

1. The proceedings taken and the order issued on plaintiffs SO ORDERED.


petition for attachment prior to the service of summons on
the defendant were contrary to law and jurisprudence and
violated the defendant's right to due process.

2. The Court of Appeals committed a grave abuse of


discretion amounting to lack of jurisdiction in ruling that a
PROVREM – Atty Tiu (Rule 57, Section 2 FT)

G.R. No. 93262 December 29, 1991 Reversal of this Decision of the Court of Appeals of May 4, 1990 is what Davao Light
seeks in the present appellate proceedings.

DAVAO LIGHT & POWER CO., INC., petitioner,


vs. The question is whether or not a writ of preliminary attachment may issue ex
THE COURT OF APPEALS, QUEENSLAND HOTEL or MOTEL or parte against a defendant before acquisition of jurisdiction of the latter's person by
QUEENSLAND TOURIST INN, and TEODORICO ADARNA, respondents. service of summons or his voluntary submission to the Court's authority.

Subject of the appellate proceedings at bar is the decision of the Court of Appeals in The Court rules that the question must be answered in the affirmative and that
CA-G.R. Sp. No. 1967 entitled "Queensland Hotel, Inc., etc. and Adarna v. Davao consequently, the petition for review will have to be granted.
Light & Power Co., Inc.," promulgated on May 4, 1990. 1 That decision nullified and
set aside the writ of preliminary attachment issued by the Regional Trial Court of
Davao City 2 in Civil Case No. 19513-89 on application of the plaintiff (Davao Light It is incorrect to theorize that after an action or proceeding has been commenced and
& Power Co.), before the service of summons on the defendants (herein respondents jurisdiction over the person of the plaintiff has been vested in the court, but before the
Queensland Co., Inc. and Adarna). 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
Following is the chronology of the undisputed material facts culled from the Appellate during this period should be defendant on, or held in suspension until, the actual
Tribunal's judgment of May 4, 1990. 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 subject-matter or
1. On May 2, 1989 Davao Light & Power Co., Inc. (hereafter, simply Davao Light) nature of the action, or the res or object hereof.
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. An action or proceeding is commenced by the filing of the complaint or other
initiatory pleading. 4 By that act, the jurisdiction of the court over the subject matter or
nature of the action or proceeding is invoked or called into activity; 5 and it is thus that
2. On May 3, 1989 Judge Nartatez, to whose branch the case was assigned by raffle, the court acquires jurisdiction over said subject matter or nature of the action. 6 And it
issued an Order granting the ex parte application and fixing the attachment bond at is by that self-same act of the plaintiff (or petitioner) of filing the complaint (or other
P4,600,513.37. appropriate pleading) — by which he signifies his submission to the court's power and
authority — that jurisdiction is acquired by the court over his person. 7 On the other
hand, jurisdiction over the person of the defendant is obtained, as above stated, by the
3. On May 11, 1989 the attachment bond having been submitted by Davao Light, the
service of summons or other coercive process upon him or by his voluntary
writ of attachment issued.
submission to the authority of the court. 8

4. On May 12, 1989, the summons and a copy of the complaint, as well as the writ of
The events that follow the filing of the complaint as a matter of routine are well
attachment and a copy of the attachment bond, were served on defendants Queensland
known. After the complaint is filed, summons issues to the defendant, the summons is
and Adarna; and pursuant to the writ, the sheriff seized properties belonging to the
then transmitted to the sheriff, and finally, service of the summons is effected on the
latter.
defendant in any of the ways authorized by the Rules of Court. There is thus ordinarily
some appreciable interval of time between the day of the filing of the complaint and
5. On September 6, 1989, defendants Queensland and Adarna filed a motion to the day of service of summons of the defendant. During this period, different acts may
discharge the attachment for lack of jurisdiction to issue the same because at the time be done by the plaintiff or by the Court, which are unquestionable validity and
the order of attachment was promulgated (May 3, 1989) and the attachment writ propriety. Among these, for example, are the appointment of a guardian ad litem, 9 the
issued (May 11, 1989), the Trial Court had not yet acquired jurisdiction over the cause grant of authority to the plaintiff to prosecute the suit as a pauper litigant, 10 the
and over the persons of the defendants. amendment of the complaint by the plaintiff as a matter of right without leave of
court, 11 authorization by the Court of service of summons by publication, 12 the
dismissal of the action by the plaintiff on mere notice. 13
6. On September 14, 1989, Davao Light filed an opposition to the motion to discharge
attachment.
This, too, is true with regard to the provisional remedies of preliminary attachment,
preliminary injunction, receivership or replevin. 14 They may be validly and properly
7. On September 19, 1989, the Trial Court issued an Order denying the motion to applied for and granted even before the defendant is summoned or is heard from.
discharge.

A preliminary attachment may be defined, paraphrasing the Rules of Court, as the


This Order of September 19, 1989 was successfully challenged by Queensland and provisional remedy in virtue of which a plaintiff or other party may, at the
Adarna in a special civil action of certiorari instituted by them in the Court of commencement of the action or at any time thereafter, have the property of the adverse
Appeals. The Order was, as aforestated, annulled by the Court of Appeals in its party taken into the custody of the court as security for the satisfaction of any
Decision of May 4, 1990. The Appellate Court's decision closed with the following judgment that may be recovered. 15 It is a remedy which is purely statutory in respect
disposition: of which the law requires a strict construction of the provisions granting it. 16 Withal
no principle, statutory or jurisprudential, prohibits its issuance by any court before
acquisition of jurisdiction over the person of the defendant.
. . . 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 Rule 57 in fact speaks of the grant of the remedy "at the commencement of the action
November 7, 1989 denying petitioner's motion for or at any time thereafter." 17 The phase, "at the commencement of the action,"
reconsideration; as well as all other orders emanating obviously refers to the date of the filing of the complaint — which, as above pointed
therefrom, specially the Writ of Attachment dated May 11, out, is the date that marks "the commencement of the action;" 18 and the reference
1989 and Notice of Levy on Preliminary Attachment dated plainly is to a time before summons is served on the defendant, or even before
May 11, 1989, are hereby declared null and void and the summons issues. What the rule is saying quite clearly is that after an action is properly
attachment hereby ordered DISCHARGED. 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
The Appellate Tribunal declared that — 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
. . . While it is true that a prayer for the issuance of a writ of
preliminary attachment may be included m the complaint, as 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
is usually done, it is likewise true that the Court does not
it finds the application otherwise sufficient in form and substance.
acquire jurisdiction over the person of the defendant until he
is duly summoned or voluntarily appears, and adding the
phrase that it be issued "ex parte" does not confer said In Toledo v. Burgos, 19 this Court ruled that a hearing on a motion or application for
jurisdiction before actual summons had been made, nor preliminary attachment is not generally necessary unless otherwise directed by the
retroact jurisdiction upon summons being made. . . . Trial Court in its discretion. 20 And in Filinvest Credit Corporation v. Relova, 21 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
It went on to say, citing Sievert v. Court of Appeals, 3 that "in a
proceedings in attachment," the "critical time which must be identified is 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
. . . when the trial court acquires authority under law to act coercively
cause of action exists, that the case is one of those mentioned in Section 1 . . . (Rule
against the defendant or his property . . .;" and that "the critical time is the
57), that there is no other sufficient security for the claim sought to be enforced by the
of the vesting of jurisdiction in the court over the person of the defendant
action, and that the amount due to the applicant, or the value of the property the
in the main case."
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." 22 If the court be so
satisfied, the "order of attachment shall be granted," 23 and the writ shall issue upon
PROVREM – Atty Tiu (Rule 57, Section 2 FT)

the applicant's posting of "a bond executed to the adverse party in an amount to be in addition to that on which the attachment was made. . . .
fixed by the judge, not exceeding the plaintiffs claim, conditioned that the latter will (Emphasis supplied)
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." 24 This is so because "(a)s pointed out in Calderon v. I.A.C., 155 SCRA 531 (1987), The
attachment debtor cannot be deemed to have waived any defect in the issuance of the
attachment writ by simply availing himself of one way of discharging the attachment
In Mindanao Savings & Loan Association, Inc. v. Court of Appeals, decided on April writ, instead of the other. Moreover, the filing of a counterbond is a speedier way of
18, 1989, 25 this Court had occasion to emphasize the postulate that no hearing is discharging the attachment writ maliciously sought out by the attaching creditor
required on an application for preliminary attachment, with notice to the defendant, for instead of the other way, which, in most instances . . . would require presentation of
the reason that this "would defeat the objective of the remedy . . . (since the) time evidence in a fullblown trial on the merits, and cannot easily be settled in a pending
which such a hearing would take, could be enough to enable the defendant to abscond incident of the case." 27
or dispose of his property before a writ of attachment issues." As observed by a former
member of this Court, 26 such a procedure would warn absconding debtors-defendants
of the commencement of the suit against them and the probable seizure of their It may not be amiss to here reiterate other related principles dealt with in Mindanao
properties, and thus give them the advantage of time to hide their assets, leaving the Savings & Loans Asso. Inc. v. C.A., supra., 28 to wit:
creditor-plaintiff holding the proverbial empty bag; it would place the creditor-
applicant in danger of losing any security for a favorable judgment and thus give him
(a) When an attachment may not be dissolved by a showing
only an illusory victory.
of its irregular or improper issuance:

Withal, ample modes of recourse against a preliminary attachment are secured by law
. . . (W)hen the preliminary attachment is issued upon a
to the defendant. The relative ease with which a preliminary attachment may be
ground which is at the same time the applicant's cause of
obtained is matched and paralleled by the relative facility with which the attachment
action; e.g., "an action for money or property embezzled or
may legitimately be prevented or frustrated. These modes of recourse against
fraudulently misapplied or converted to his own use by a
preliminary attachments granted by Rule 57 were discussed at some length by the
public officer, or an officer of a corporation, or an attorney,
separate opinion in Mindanao Savings & Loans Asso. Inc. v. CA., supra.
factor, broker, agent, or clerk, in the course of his
employment as such, or by any other person in a fiduciary
That separate opinion stressed that there are two (2) ways of discharging an capacity, or for a willful violation of duty." (Sec. 1 [b], Rule
attachment: first, by the posting of a counterbond; and second, by a showing of its 57), or "an action against a party who has been guilty of
improper or irregular issuance. fraud m contracting the debt or incurring the obligation upon
which the action is brought" (Sec. 1 [d], Rule 57), the
defendant is not allowed to file a motion to dissolve the
1.0. The submission of a counterbond is an efficacious mode of lifting an attachment attachment under Section 13 of Rule 57 by offering to show
already enforced against property, or even of preventing its enforcement altogether. the falsity of the factual averments in the plaintiff's
application and affidavits on which the writ was based —
and consequently that the writ based thereon had been
1.1. When property has already been seized under attachment, the attachment may be improperly or irregularly issued (SEE Benitez v. I.A.C., 154
discharged upon counterbond in accordance with Section 12 of Rule 57. SCRA 41) — the reason being that the hearing on such a
motion for dissolution of the writ would be tantamount to a
trial of the merits of the action. In other words, the merits of
Sec. 12. Discharge of attachment upon giving
the action would be ventilated at a mere hearing of a motion,
counterbond. — At any time after an order of attachment has
instead of at the regular trial. Therefore, when the writ of
been granted, the party whose property has been attached or
attachment is of this nature, the only way it can be dissolved
the person appearing in his behalf, may, upon reasonable
is by a counterbond (G.B. Inc. v. Sanchez, 98 Phil. 886).
notice to the applicant, apply to the judge who granted the
order, or to the judge of the court in which the action is
pending, for an order discharging the attachment wholly or (b) Effect of the dissolution of a preliminary attachment on the plaintiffs attachment
in part on the security given . . . in an amount equal to the bond:
value of the property attached as determined by the judge to
secure the payment of any judgment that the attaching
creditor may recover in the action. . . . . . . The dissolution of the preliminary attachment upon
security given, or a showing of its irregular or improper
issuance, does not of course operate to discharge the sureties
1.2. But even before actual levy on property, seizure under attachment may be on plaintiff's own attachment bond. The reason is simple.
prevented also upon counterbond. The defendant need not wait until his property is That bond is "executed to the adverse party, . . . conditioned
seized before seeking the discharge of the attachment by a counterbond. This is made that the . . . (applicant) will pay all the costs which may be
possible by Section 5 of Rule 57. 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" (SEC. 4,
Sec. 5. Manner of attaching property. — The officer
Rule 57). Hence, until that determination is made, as to the
executing the order shall without delay attach, to await
applicant's entitlement to the attachment, his bond must
judgment and execution in the action, all the properties of
stand and cannot be with-drawn.
the party against whom the order is issued in the province,
not exempt from execution, or so much thereof as may be
sufficient to satisfy the applicant's demand, unless the former With respect to the other provisional remedies, i.e., preliminary injunction (Rule 58),
makes a deposit with the clerk or judge of the court from receivership (Rule 59), replevin or delivery of personal property (Rule 60), the rule is
which the order issued, or gives a counter-bond executed to the same: they may also issue ex parte. 29
the applicant, in an amount sufficient to satisfy such demand
besides costs, or in an amount equal to the value of the
property which is about to be attached, to secure payment to It goes without saying that whatever be the acts done by the Court prior to the
the applicant of any judgment which he may recover in the acquisition of jurisdiction over the person of defendant, as above indicated — issuance
action. . . . (Emphasis supplied) of summons, order of attachment and writ of attachment (and/or appointments of
guardian ad litem, or grant of authority to the plaintiff to prosecute the suit as a pauper
litigant, or amendment of the complaint by the plaintiff as a matter of right without
2.0. Aside from the filing of a counterbond, a preliminary attachment may also be leave of court 30 — and however valid and proper they might otherwise be, these do
lifted or discharged on the ground that it has been irregularly or improperly issued, in not and cannot bind and affect the defendant until and unless jurisdiction over his
accordance with Section 13 of Rule 57. Like the first, this second mode of lifting an person is eventually obtained by the court, either by service on him of summons or
attachment may be resorted to even before any property has been levied on. Indeed, it other coercive process or his voluntary submission to the court's authority. Hence,
may be availed of after property has been released from a levy on attachment, as is when the sheriff or other proper officer commences implementation of the writ of
made clear by said Section 13, viz.: attachment, it is essential that he serve on the defendant not only a copy of the
applicant's affidavit and attachment bond, and of the order of attachment, as explicity
required by Section 5 of Rule 57, but also the summons addressed to said defendant as
Sec. 13. Discharge of attachment for improper or irregular
well as a copy of the complaint and order for appointment of guardian ad litem, if any,
issuance. — The party whose property has been attached
as also explicity directed by Section 3, Rule 14 of the Rules of Court. Service of all
may also, at any time either BEFORE or AFTER the release
such documents is indispensable not only for the acquisition of jurisdiction over the
of the attached property, or before any attachment shall
person of the defendant, but also upon considerations of fairness, to apprise the
have been actually levied, upon reasonable notice to the
defendant of the complaint against him, of the issuance of a writ of preliminary
attaching creditor, apply to the judge who granted the order,
attachment and the grounds therefor and thus accord him the opportunity to prevent
or to the judge of the court in which the action is pending,
attachment of his property by the posting of a counterbond in an amount equal to the
for an order to discharge the attachment on the ground that
plaintiff's claim in the complaint pursuant to Section 5 (or Section 12), Rule 57, or
the same was improperly or irregularly issued. If the motion
dissolving it by causing dismissal of the complaint itself on any of the grounds set
be made on affidavits on the part of the party whose property
forth in Rule 16, or demonstrating the insufficiency of the applicant's affidavit or bond
has been attached, but not otherwise, the attaching creditor
in accordance with Section 13, Rule 57.
may oppose the same by counter-affidavits or other evidence
PROVREM – Atty Tiu (Rule 57, Section 2 FT)

It was on account of the failure to comply with this fundamental requirement of


service of summons and the other documents above indicated that writs of attachment
issued by the Trial Court ex parte were struck down by this Court's Third Division in
two (2) cases, namely: Sievert v. Court of Appeals, 31 and BAC Manufacturing and
Sales Corporation v. Court of Appeals, et al. 32 In contrast to the case at bar — where
the summons and a copy of the complaint, as well as the order and writ of attachment
and the attachment bond were served on the defendant — in Sievert, levy on
attachment was attempted notwithstanding that only the petition for issuance of the
writ of preliminary attachment was served on the defendant, without any prior or
accompanying summons and copy of the complaint; and in BAC Manufacturing and
Sales Corporation, neither the summons nor the order granting the preliminary
attachment or the writ of attachment itself was served on the defendant "before or at
the time the levy was made."

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.

WHEREFORE, the petition is GRANTED; the challenged decision of the Court of


Appeals is hereby REVERSED, and the order and writ of attachment issued by Hon.
Milagros C. Nartatez, Presiding Judge of Branch 8, Regional Trial Court of Davao
City in Civil Case No. 19513-89 against Queensland Hotel or Motel or Queensland
Tourist Inn and Teodorico Adarna are hereby REINSTATED. Costs against private
respondents.

SO ORDERED.
PROVREM – Atty Tiu (Rule 57, Section 2 FT)

G.R. No. 102448 August 5, 1992 . . . 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
RICARDO CUARTERO, petitioner, with a copy of the complaint nor voluntary appearance of
vs. petitioners was had in this case before the trial court issued
COURT OF APPEALS, ROBERTO EVANGELISTA and FELICIA the assailed order dated August 24, 1990, as well as the writ
EVANGELISTA, respondents. of preliminary attachment dated September 19, 1990. This is
reversible error and must be corrected on certiorari. (Rollo,
p. 24)
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 The appellate tribunal relied on the case of Sievert v. Court of Appeals, 168 SCRA 692
entitled "Spouses Roberto and Felicia Evangelista v. Honorable Cezar C. Peralejo, (1988) in arriving at the foregoing conclusion. It stated that:
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 Valid service of summons and a copy of the complaint vest
19, 1990. 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
Following are the series of events giving rise to the present controversy. 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
On August 20, 1990, petitioner Ricardo Cuartero filed a complaint before the Regional
of Appeals, 168 SCRA 692). (Rollo, p. 24)
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. 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
On August 24, 1990, the lower court issued an order granting ex-parte the petitioner's
stress that the fraud in contracting the debt or incurring the obligation upon which the
prayer for the issuance of a writ of preliminary attachment.
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
On September 19, 1990, the writ of preliminary attachment was issued pursuant to the defraud the petitioner when the postdated checks were issued inasmuch as the latter
trial court's order dated August 24, 1990. On the same day, the summons for the was aware that the same were not yet funded and that they were issued only for
spouses Evangelista was likewise prepared. purposes of creating an evidence to prove a pre-existing obligation.

The following day, that is, on September 20, 1990, a copy of the writ of preliminary Another point which the private respondents raised in their comment is the alleged
attachment, the order dated August 24, 1990, the summons and the complaint were all violation of their constitutionally guaranteed right to due process when the writ was
simultaneously served upon the private respondents at their residence. Immediately issued without notice and hearing.
thereafter, Deputy Sheriff Ernesto L. Sula levied, attached and pulled out the
properties in compliance with the court's directive to attach all the properties of private
In the later case of Davao Light and Power Co., Inc. v. Court of Appeals, G.R. No.
respondents not exempt from execution, or so much thereof as may be sufficient to
93262, November 29, 1991, we had occasion to deal with certain misconceptions
satisfy the petitioner's principal claim in the amount of P2,171,794.91.
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-
Subsequently, the spouses Evangelista filed motion to set aside the order dated August parte against a defendant before the court acquires jurisdiction over the latter's person
24, 1990 and discharge the writ of preliminary attachment for having been irregularly by service of summons or his voluntary submission to the court's authority. The Court
and improperly issued. On October 4, 1990, the lower court denied the motion for lack answered in the affirmative. This should have clarified the matter but apparently
of merit. another ruling is necessary.

Private respondents, then, filed a special civil action for certiorari with the Court of A writ of preliminary attachment is defined as a provisional remedy issued upon order
Appeals questioning the orders of the lower court dated August 24, 1990 and October of the court where an action is pending to be levied upon the property or properties of
4, 1990 with a prayer for a restraining order or writ of preliminary injunction to enjoin the defendant therein, the same to be held thereafter by the sheriff as security for the
the judge from taking further proceedings below. 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]).
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. 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
On June 27, 1991, the Court of Appeals granted the petition for certiorari and Loan Association, Inc. v. Court of Appeals, 172 SCRA 480 (1989), no notice to the
rendered the questioned decision. The motion for reconsideration filed by herein adverse party or hearing of the application is required inasmuch as the time which the
petitioner Cuartero was denied for lack of merit in a resolution dated October 22, hearing will take could be enough to enable the defendant to abscond or dispose of his
1991. Hence, the present recourse to this Court. 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
The petitioner raises the following assignment of errors: guaranteed right to due process.

I 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 COURT OF APPEALS ERRED AND COMMITTED
A GRAVE ABUSE OF DISCRETION, AMOUNTING TO 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
LACK OF JURISDICTION WHEN IT HELD THAT THE
before summons issues. The Court added that —
REGIONAL TRIAL COURT DID NOT ACQUIRE
JURISDICTION OVER RESPONDENT SPOUSES.
. . . after an action is properly commenced — by filing of the
II 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
THE COURT OF APPEALS ERRED AND ACTED WITH requisites laid down by law, and that he may do so at any
GRAVE ABUSE OF DISCRETION WHEN IT HELD time, either before or after service of summons on the
THAT THE REGIONAL TRIAL COURT COULD NOT defendant. And this, indeed, has been the immemorial
VALIDLY ISSUE THE SUBJECT WRIT OF practice sanctioned by the courts: for the plaintiff or other
PRELIMINARY ATTACHMENT WHICH IS AN proper party to incorporate the application for attachment in
ANCILLARY REMEDY. (Rollo, p. 13) 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
The Court of Appeals' decision is grounded on its finding that the trial court did not it finds the application otherwise sufficient in form and
acquire any jurisdiction over the person of the defendants (private respondents herein). substance.
It declared that:

The Court also pointed out that:


PROVREM – Atty Tiu (Rule 57, Section 2 FT)

. . . It is incorrect to theorize that after an action or SO ORDERED.


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 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:

. . . 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 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.
PROVREM – Atty Tiu (Rule 57, Section 2 FT)

G.R. No. L-46009 May 14, 1979 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
RICARDO T. SALAS and MARIA SALAS, petitioners, irregularly issued and the defect is not cured forthwith.
vs.
HON. MIDPANTAO L. ADIL, as Judge of Branch II, Court of First Instance of
Iloilo, ROSITA BEDRO and BENITA YU, respondents. Considering that petitioners have not availed of this remedy, the instant petition is
premature.

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 We deem it necessary, however, for the guidance of respondent Court and of the
of the Court of First Instance of Iloilo, entitled "Rosita Bedro and Benita Yu v. parties, to stress herein the nature of attachment as an extraordinary provisional
Spouses Ricardo T. Salas and Maria Salas, et al. remedy.

On September 10, 1976, respondents Rosita Bedro and Benita Yu filed the afore- A preliminary attachment is a rigorous remedy, which exposes the debtor to
mentioned civil action with the Court of First Instance of Iloilo against herein humiliation and annoyance, such it should not be abused as to cause unnecessary
petitioners Ricardo T. Salas and Maria Salas, the Philippine Commercial & Industrial prejudice. It is, therefore, the duty of the court, before issuing the writ, to ensure that
Bank, in its capacity as Administrator of the Testate Estate of the deceased Charles all the requisites of the law have been complied with; otherwise the judge acts in
Newton Hodges, and Avelina A. Magno, in her capacity as Administratrix of the excess of his jurisdiction and the so issued shall be null and void . 1
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 In Carpio v. Macadaeg, 2 this Court said:
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
Respondent Judge should not have issued the two writs of
on the assertion that after defendant spouses purchased Lots Nos. 2 and 3, they also
preliminary attachment (Annexes C and C-1) on Abaya's
purchased Lot No. 5 and thereafter "erected wooden posts, laid and plastered at the
simple allegation that the petitioner was about to dispose of
door of the house on Lot No. 3, with braces of hardwood, lumber and plywood nailed
his property, thereby leaving no security for the satisfaction
to the post", thereby preventing Rosita Bedro and Benita Yu from using the road on
of any judgment. Mere removal or disposal of property, by
the afore-mentioned lot, Lot No. 5, and that as a result of such obstruction, private
itself, is not ground for issuance of preliminary attachment,
respondents Rosita Bedro and Benita Yu sustained actual damages in the amount of
notwithstanding absence of any security for the satisfaction
P114,000.00, plus the sum of Pl,000.00 as damages daily from June 30, 1976 due to
of any judgment against the defendant. The removal or
the stoppage in the construction of their commercial buildings on Lot No. 3, and moral
disposal, to justify preliminary attachment, must have been
damages in the amount of P200,000.00.
made with intent to defraud defendant's creditors.

In their answer to the complaint, the Salas spouses, after specifically denying the
Respondent Judge in fact corrected himself. Acting on
material allegations in the complaint, stated that Lot No. 5 had been registered in the
petitioner's motion to discharge attachment and apparently
name of the C. N. Hodges as their exclusive private property and was never subjected
believing the correctness of the grounds alleged therein, he
to any servitude or easement of right of way in favor of any person; that any occupants
set aside the orders of attachment (Order of March 11, 1960,
of Lots Nos. 2 and 3 have direct access to Bonifacio Drive, a National Highway,
Annex F)
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 But reversing himself again, he set aside his order of March
by building a concrete wall on the boundary thereon without providing any gate as 11, 1960 (Annex K, dated March 29, 1960). This he did
entrance or exit towards Lot No. 5; and that private respondents have no personality to apparently on Abaya's contention that petitioner was about to
question the validity of the deed of sale over Lot No. 5 since they were not parties to remove or dispose of his property in order to defraud his
the same and the sale was duly approved by the probate court. 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
In a motion dated May 12, 1977, private respondents filed a Motion for Attachment,
controverted by petitioner who ... reiterated the defenses
alleging, among others, that the case was "for annulment of a deed of sale and
against preliminary attachment which he had previously
recovery of damages" and that the defendants have removed or disposed of their
enumerated in his petition to discharge the two orders of
properties or are about to do so with intent to defraud their creditors especially the
attachment. Thus the question of fraudulent disposal was put
plaintiffs in this case.
in issue; and respondent Judge, before issuing the pre
attachment anew, should have given the parties opportunity
On May 13, 1977, respondent Judge issued ex-parte a Writ of Attachment "against the to prove their respective claims or, at the very least should
properties of the defendants particularly Lots Nos. 1 and 4 of Psc-2157 less the have provided petitioner with the chance to show that he had
building standing thereon upon the plaintiffs filing a bond in the amount of not been disposing of his property in fraud of creditors.
P200,000.00 subject to the approval of this Court." After a surety bond in the amount (citing National Coconut Corporation v. Pecson L-4296,
of P200,000.00, executed on May 11, 1977 by the Central Surety and Insurance Feb. 25, 1952, Villongco v. Panlilio, 6214, Nov. 20, 1953).
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,
And in Garcia v. Reyes, 3 considering the allegation that the debtors were removing or
1977, the Deputy Sheriff of Iloilo levied upon the aforesaid properties of petitioners.
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
Contending that respondent Judge gravely abused his discretion in issuing the said ventilate their respective contentions in a hearing that could indeed reveal the truth.
Writ of Attachment, petitioners filed the present petition. Fairness would be served thereby, the demand of reason satisfied."

In certiorari proceedings, the cardinal rule is that the court must be given the Considering the gravity of the allegation that herein petitioners have removed or
opportunity to correct itself, Thus, for the special civil action of certiorari to prosper, disposed of their properties or are about to do so with intent to defraud their creditors,
there must be no appeal nor any plain, speedy and adequate remedy in the ordinary and further considering that the affidavit in support of the pre attachment merely states
course of law. Petitioners, therefore, must exhaust all available remedies in the lower such ground in general terms, without specific allegations of lances to show the reason
court before filing a petition for certiorari, otherwise the petition shall be held to be why plaintiffs believe that defendants are disposing of their properties in fraud of
premature. 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
In the instant case, it appears that petitioners have adequate remedy under the law. damages, including moral damages, from petitioners. The authorities agree that the
They could have filed an application with the court a quo for the discharge of the writ of attachment is not available 'm a suit for damages where the amount claimed is
attachment for improper or irregular issuance under section 13, Rule 57, of the contingent or unliquidated.
Revised Rules of Court, which provides the following

We think, however, that a rule sufficient for the


SEC. 13. Discharge of attachment for improper or irregular determination of this case has been suggested and acted
issuance. — The party whose property has been attached upon, and that the remedy does not exist where unliquidated
may also, at any time either before or after the release of the damages were demanded. ... In Warwick v. Chase, 23 Md
attached property, or before any attachment shall have been 161, it is said: 'It is necessary that the standard for
actually levied, upon reasonable notice to the attaching ascertaining the amount of damages claimed should not only
creditor, apply to the judge who Salas vs. Adil granted the appear, but that it should be fixed and certain, and in no
order, or to the judge of the court in which the action is degree dependent on facts either speculative or Uncertain ...
pending, for an order to discharge the attachment on the The general rule is, that unliquidated damages, ... cannot be
ground that the same was improperly or irregularly issued. If recovered by attachment, unless the contract affords a certain
the motion be made on affidavits on the part of the party measure or standard for ascertaining the amount of the
whose property has been attached, but not otherwise, the damages ... 4
attaching creditor may oppose the same by counter-affidavits
PROVREM – Atty Tiu (Rule 57, Section 2 FT)

Further.

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.
PROVREM – Atty Tiu (Rule 57, Section 2 FT)

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.

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.

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:

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.