PROVISIONAL REMEDIES CASES

1. PERLA COMPANIA DE SEGUROS, INC vs HON. JOSE R. RAMOLETE,

PRIMITIVA Y. PALMES, HONORATO BORBON, SR., OFFICE OF THE PROVINCIAL
SHERIFF, PROVINCE OF CEBU
G.R. No. L-60887 November 13, 1991

Garnishment is a form of attachment.

Facts:
 A Cimarron PUJ was driven by driver Cosme, PUJ owned and reglistered under
Nelia Enriquez, traveling from Cebu to Danao City. The jeep collided with a
private jeep driven by Calixto Palmes. Calixto died as the jeep flung about 30 feet
and fell on its right pinning him. He died of CP arrest due to crushed chest.,
Adeudatus Borbon though (2 y.o) only had physical injuries.
 Primitiva (wife) and Honorato Borbon (father of the 2yo child) filed a complaint
against the driver and Nelia Enriquez, in RTC Cebu claiming damages.
 The claim of Honorator Borbon for his son was excluded on the case as the claim
is separate and distinct thereof.
 Primitiva won the case and is awarded with damages., however, the judgment
remained unsatisfied. Nelia said that the vehicle is insured under Perla.
 Nelia filed a motion for garnishment praying it to be issued against Perla in favor
of the judgment debtor.
Perla moved for a motion for reconsideration, on the grounds that it was not a party to
the case. More so under Rule 39,sec 45, “Court "may only authorize" the judgment
creditor to institute an action against a third person who holds property belonging to the
judgment debtor”

Issues: WON motion for garnishment is a form of attachment which subjects the
garnishee as a forced intervenor on a case?

Ruling:Yes.
 Garnishment has been defined as a species of attachment for reaching any
property or credits pertaining or payable to a judgment debtor
 the original creditor of the garnishee is, through service of the writ of
garnishment, substituted by the judgment creditor who thereby becomes creditor
of the garnishee
 Garnishment has also been described as a warning to a person having in his
possession property or credits of the judgment debtor, not to pay the money or
deliver the property to the latter, but rather to appear and answer the plaintiff's
suit
 Garnishee need not to be impleaded as a party to the case.
Through service of the writ of garnishment, the garnishee becomes a "virtual party" to,

or a "forced intervenor" in, the case and the trial court thereby acquires jurisdiction to
 bind him to compliance with all orders and processes of the trial court with a view to the
complete satisfaction of the judgment of the court.

 judgment debtor Nelia Enriquez clearly had an interest in the proceeds of the
third-party liability insurance contract. In a third-party liability insurance contract,
the insurer assumes the obligation of paying the injured third party to whom the
insured is liable.

2. G.R. No. L-54242. November 25, 1983

MAGDALENA ESTATE, INC., Plaintiff-Appellee, v. RENE NIETO and HELEN
GARCIA

“Action in Personam needs personal service, remedy: convert the action into action
quasi in rem.”

Facts:
 A parcel of land in New Manila Subdivison, QC were bought bu Nieto and Garcia,
with title transferred on their names despite non payment of full amount. The cost
of the land is 12k, under the following conditions:
(a) the defendants shall pay plaintiff the sum of P12,000.00, with interest thereon
at the rate of 7% per annum, said amount to be payable without demand in
consecutive monthly Installments of not less than P500.00 per month, beginning
December 3, 1960, and on the third day of each month thereafter, until fully paid;
(b) in case of failure to pay any monthly installment due, the total obligation, or
the balance thereof, shall automatically become due and immediately payable;
(c) that the plaintiff shall have the right to enforce payment of the obligation,
together with the corresponding interest, including attorney’s fees and the costs
of suit in case of litigation to enforce collection of the said obligation 
 yet they were only able to pay 50 pesos in 2 different occasions.
 Extrajudicial demands were sent by petitioner itself but to no avail.
 Demand letters were sent by the lawyer was made but to no avail.
 Ex parte reception of evidence were made as respondents were declared in
default, the sheriff even went to their workplace to serve the summons but to no
avail still.
 When the trial court rendered a decision however, respondents were able to
receive the decision.
 On its appeal respondents contended that service of publications in action in
personam is not proper, hence the court who rendered the decision did not have
jurisdiction over them.

Issues: Is personal service of summons the correct service in action in personam? If so,
what is the remedy of the aggrieved party?
Ruling:Yes; Remedy: convert the action to action quasi in rem
 Personal service of summons is required in action in personam.
 in an action strictly in personam, like the one at bar, personal service of
summons, within the forum, is essential to the acquisition of jurisdiction over the
person of the defendant, who does not voluntarily submit himself to the authority
of the court. In other words, summons by publication cannot — consistently with
the due process clause in the Bill of Rights — confer upon the court jurisdiction
over said defendant."
 The proper recourse for a creditor in the same situation as petitioner is to locate
properties, real or personal, of the resident defendant debtor with unknown
address and cause them to be attached under Rule 57, Section 1(f), in which
case, the attachment converts the action into a proceeding in rem or quasi in rem
and the summons by publication may then accordingly be deemed valid and
effective.

3. G.R. No. L-32170. March 31, 1971

CITIZENS’ SURETY & INSURANCE COMPANY, INC., Petitioner, v. HON. JUDGE A.
MELENCIO-HERRERA, SANTIAGO DACANAY, and JOSEFINA DACANAY

Facts:
 The surety company issued 2 surety bonds in favor of Gregorio Fajardo to
grantee payment of P5000 promissory note in favor of Manufacturers Bank and
Trust company, to guarantee payment of another promissory note in like amount
Santiago and Josefina executed indemnity agreements, with interest at 12% per
annum and as an additional security, property in Baguio was mortgaged. As a
result of nonpayment, surety company forclosed the property and was sold to
plaintiff, who only paid P2000 with a balance of P10k.
 Judge Herrera caused the summons by publication on a newspaper Herald, then
plaintiff after lapse of 60 days, asked defendants be declared in default.
 The Surety company requested for defendants to be declared in default.
 However, Judge Herrera dismissed the motion of surety company as it said that
there was no valid service of summons.

Issues: Was there a valid service of summons in this action in personam? If no, what
are the remedies?

Ruling:None; Remedies: convert the action into a quasi in rem.

Justice Roberto Concepcion: "Apart from the foregoing, it is well-settled principle of
Constitutional Law that, in an action strictly in personam, like the one at bar, personal
service of summons, within the forum. is essential to the acquisition of jurisdiction over
the person of the defendant, who does not voluntarily submit himself to the authority of
the court. In other words, summons by publication cannot — consistently with the due
process clause in the Bill of Rights — confer upon the court jurisdiction over said
defendants.
The proper recourse for a creditor in the same situation as petitioner is to locate
properties, real or personal, of the resident defendant debtor with unknown address and
cause them to be attached under Rule 57, section 1(f), in which case, the attachment
converts the action into a proceeding in rem or quasi in rem and the summons by
publication may then accordingly be deemed valid and effective.

But because debtors who abscond and conceal themselves are also quite adept at
concealing their properties, the dismissal of the case below by respondent Judge should
be set aside and the case held pending in the court’s archives, until petitioner as plaintiff
succeeds in determining the whereabouts of the defendants’ person or properties and
causes valid summons to be served personally or by publication as the case may be.

Rule: proceedings are ordered SUSPENDED until ma ascertain sa plaintiff ang

whereabouts sa property.

G.R. No. L-35990 June 17, 1981

4. ABOITIZ & COMPANY, INC., HONORABLE VICENTE N. CUSI JR., Judge of the
Court of First Instance of Davao, and the PROVINCIAL SHERIFF OF DAVAO DEL
SUR, Petitioners, vs. COTABATO BUS COMPANY, INC

If WOPA was made on the ground that debtor is concealing,disposing his properties
with intend to defraud creditors, it must be proven and shown.

Facts:
 In light of a civil case, a WOPA was issued ex parte by Aboitiz as plaintiff, for
COSM in the sum of P155,739.41, which defendant CBC owe to Aboitiz.
 The provincial sheriff attached personal properties of CBC, the ground for
issuance therefore is the allegation in the complaint as well as the affidavit of
merit by Assistant Manager of Aboitiz, that the defendant has removed or
disposed its properties and assets with the intention to defraud its creditors.
 CBC moved to quash the WOPA on the ground that allegations were not true
and in fact, CBC is buying more assets. The lower court denied the motion to
quash, MR was filed but was also denied. CBC filed a petition for certiorari before
CA on the ground of GAD, CA issued a TRO and reversed the lower court’s
decision, nullifying the WOPA.

Issues:WON CBC removed its properties, with the intention to defraud its creditors,
thereby making the WOPA proper?

Ruling: No. CA did not err in nullifying WOPA.

Note: even for the measly amount of P 634.00 payment thereof was made with a
personal check of the respondent company's president and majority stockholder, and its
debts to several creditors, including secured ones like the DBP, have remained unpaid,
despite its supposed daily income of an average of P 12,000.00, as declared by its
assistant manager, Baldovino Lagbao.
 It should be noted however, that 5 buses were attached and then with approval
of sheriff, were repaired, not to defraud its creditors, but for the benefit of the
riding public.

 The dwindling of respondent's bank account despite its daily income of from
P10,000.00 to P14,000.00 is easily explained by its having to meet heavy
operating expenses, which include salaries and wages of employees and
workers. If, indeed the income of the company were sufficiently profitable, it
should not allow its buses to fall into disuse by lack of repairs. It should also
maintain a good credit standing with its suppliers of equipment, and other needs
of the company to keep its business a going concern. Petitioner is only one of the
suppliers.chanroblesvirtualawlibrary chanrobles virtual law library
 It is, indeed, extremely hard to remove the buses, machinery and other
equipments which respondent company have to own and keep to be able to
engage and continue in the operation of its transportation business. The sale or
other form of disposition of any of this kind of property is not difficult of detection
or discovery, and strangely, petitioner, has adduced no proof of any sale or
transfer of any of them, which should have been easily
obtainable.chanroblesvirtualawlibrary chanrobles virtual law library

G.R. No. 55272. April 10, 1989

5. JARDINE-MANILA FINANCE, INC., Petitioner, v. COURT OF APPEALS, IMPACT

CORPORATION, RICARDO DE LEON and EDUARDO DE LEON

“WOPA must be stirctly construed in favor of the defendant”

Facts:
 JARDINE filed a complaint in CFI Rizal against IMPACT and Ricardo de Leon
and Eduardo de Leon for COSM allegedly due from IMPACT under a credit
accommodation by way of discounting agreement. De Leons were included as
defendants by virtue of the surety agreement for IMPACT.
 It was alleged that IMPACT assigned its receivables to JARDINE however, the
former, after collecting the amounts due, did not turn over the amounts collected
to JARDINE.
 This J demanded payment of P1,000,212.64. plus P16k interest and 25% atty’s
fees and damages.
 Jardine filed a WOPA against respondents on the basis of not honoring the
surety agreement hence attaching real and personal property located in MM.
 The lower court granted the WOPA
 Defendants content that the grounds alleged by the plaintiff on WOPA are not
among the grounds under Rule 57 sec 1., that they have other sufficient
 securities, that there was no affidavit of merit to support the application for
attachment as required on section 3 and it did not state the amount due above all
legal setups or counterclaims.
 J on the other hand contends, that the mental reservation of defendants constitue
fraud, for not being able to remit the receivables collected for J.
 Trial court denied defendant’s motion to annul the WOPA.
 The CA ruled otherwise as stated: there was no allegation made by plaintiff in its
application for the issuance of a writ of attachment to the effect `that there is no
sufficient security for the claim sought to be enforced, by the action, and the
amount due to the applicant or the value of the property on the basis of which is
entitled to recover, is as much as the sum for which the order is granted above all
legal counterclaims, a requirement for the granting of an order of attachment
under Section 3 of Rule 57.
 Hence, CA ruled to annul the attachment.

Issues: WON requisited for a valid WOPA was followed by J.

Ruling: No. Requisities lacking.

 it is evident that the questioned writ was issued ex parte; and at a time when the
Court a quo had yet no basis for concluding that the amount due to petitioner is
as much as the sum for which the order is granted above all legal counterclaims.

 Sec. 3. Affidavit and bond required. — An order of attachment shall be granted

only when it is made to appear by the affidavit of the applicant or some other
person who personally knows of the facts, that a sufficient cause of action exists,
that the case is one of those mentioned in section 1 hereof, that there is no
sufficient security for the claim sought to be enforced by the action, and that the
amount due to applicant or the value of the property the possession of which he
is entitled to recover is a much as the sum for which the order is granted above
all legal counterclaims."cralaw virtua1aw library

 More specifically, it has been held that the failure to allege in the affidavit the
requisites prescribed for the issuance of the writ of preliminary attachment,
renders the writ of preliminary attachment issued against the property of the
defendant fatally defective, and the judge issuing it is deemed to have acted in
excess of his jurisdiction. 26 In fact, in such cases, the defect cannot even be
cured by amendment.

 Since the attachment is a harsh and rigorous remedy which exposes the debtor
to humiliation and annoyance, the rule authorizing its issuance must be strictly
construed in favor of defendant. It is the duty of the court before issuing the writ
to ensure that all the requisites of the law have been complied with. 28
Otherwise, a judge acquires no jurisdiction to issue the writ.
6. G.R. No. 61754. August 17, 1989
ROBERTO TING and DOLORES TING, Petitioners, v. HON. AUGUSTO E.
VILLARIN, FELICIANO GERVACIO, FERDINAND J. GUERRERO, and
CONSOLIDATED BANK & TRUST COMPANY

Facts:
 Consolidated Bank filed a complaint for COSM with prayer for a WOPA against
Perlon Textile Mills and its directiors.
 Roberto Ting, a director was impleaded with wife Dolores to bind their CPG
which allegedly benefitted from the transaction subject to the complaint.
 There are 2 COA, first was targetted at recovering on several promissory notes
on the amount of P2,972,955.51, allegedlu obtained for defendant corporation by
its duly authorized officers Lu Cheng Peng, Teng See, and Roberto Ting. They
allegedly signed the PN on their personal/official capacity binding themselves for
its payment.
 The 2nd COA is on the violation of trust receipt agreements with the corpo
executed in favor of Consolidated bank.
 Conso bank filed a WOPA on the ground of fraud in contracting the obligation
 efendants are guilty of fraud in contracting their obligations more specifically
illustrated by their violation of the trust receipt agreement which is a ground
defined under Sec. 1, Rule 57 of the Rules of Court for the issuance of a writ of
preliminary attachment.
 Trial court judge issued WOPA, Tings filed a motion to quash but was denied,
MR was subsequently denied as well.
 Ting spouse filed a petition for certiorari
Grounds:
 They are questioning the writ of preliminary attachment principally on the ground
that the application therefor hinges on "fraud in contracting" the trust receipt
agreements under the second cause of action. On the other hand, the petitioners
are impleaded in the complaint merely under the first cause of action.
 Moreover, the petitioners challenge the writ of preliminary attachment issued
because, in effect, it pierced the veil of corporate fiction. The petitioners explain
that the corporation alone should be held liable for the violation of the trust
receipt agreements.
 The court authorized attachment of the property on a CPG.

Issues:
1. Can WOPA be issued on general averment (fraud in contracting obligations)
2. WON properties on CPG can be attached.

Ruling:
  An order of attachment cannot be issued on a general averment, such as one
ceremoniously quoting from a pertinent rule. 6 The need for a recitation of factual
circumstances that support the application becomes more compelling here
considering that the ground relied upon is "fraud in contracting an obligation."
The complaint utterly failed to even give a hint about what constituted the fraud
and how it was perpetrated. Fraud cannot be presumed.

 WOPA attaching the property on CPG is null on the grounds that:

(a) First, the wife Dolores was impleaded merely because of the fact that she is the
spouse of Roberto;

(b) Second, the conjugal partnership cannot possibly be benefitted (again, here,
Consolidated Bank’s allegation that the act of the husband redounded to the benefit of
the conjugal partnership is mere "book form") when the husband binds himself, as
guarantor, because this act does not conserve or augment conjugal hinds but instead
threatens to dissipate them 12 by unnecessary and unwarranted risks to the
partnership’s financial stability. When the husband assumes the obligation of a
guarantor, the presumption that he acts, as administrator, for the benefit of the conjugal
partnership, is lost.

7. G.R. No. 93262 December 29, 1991

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

vs.
THE COURT OF APPEALS, QUEENSLAND HOTEL or MOTEL or QUEENSLAND TOURIST INN,
and TEODORICO ADARNA

Facts:

Issues:
Ruling:

G.R. No. 84034 December 22, 1988

8. ALBERTO SIEVERT, petitioner,  vs. COURT OF APPEALS, HON. JUDGE

ARTEMON D. LUNA and AURELIO CAMPOSANO

“in this case, WOPA is on its implementation stage, this is in comparison why next
case”
“NO JURISDICTION TO THE MAIN ACTION IS NO JURSIDICTION TO THE
ANCILIARY ACTION SUCH AS WOPA”

Facts:
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
Regional Trial Court of Manila Branch 32 in Civil Case No. 88-44346. Petitioner had not
previously received any summons and any copy of a complaint against him in Civil
Case No. 88-44346

Sievert filed a written objection, on the ground that WOPA is invalid for there was no
proper service of summons upon him. Therefore, jurisdiction over his person was not
acquired.

The court denied the objection of Sievert. On petition for certiorari with CA, it dismissed
the petition. It ruled that writ of preliminary attachment may issue upon filing of the
complaint even before issuance of the summons.

Hence this petition for certiorari.

Issues:
whether a court which has not acquired jurisdiction over the person of the defendant in
the main case, may bind such defendant or his property by issuing a writ of preliminary
attachment.

Ruling:No.
 Attachment is an ancillary remedy. (If wala kay juris sa main action, wala jud
kay juris sa ancilliary action).It is not sought for its own sake but rather to enable
the attaching party to realize upon relief sought and expected to be granted in the
main or principal action . 4 A court which has not acquired jurisdiction over the
person of defendant, cannot bind that defendant whether in the main case or in
any ancillary proceeding such as attachment proceedings. The service of a
petition for preliminary attachment without the prior or simultaneous service of
summons and a copy of the complaint in the main case — and that is what
happened in this case — does not of course confer jurisdiction upon the issuing
court over the person of the defendant.

 valid service of summons and a copy of the complaint will in such case vest
jurisdiction in the court over the defendant both for purposes of the main case
and for purposes of the ancillary remedy of attachment. In such case, notice of
the 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 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 has already been acquired by such
 service of summons. Notice of the separate attachment petition is not notice of
the main action. 

 If a court has no jurisdiction over the subject matter or over the person of the
defendant in the principal action, it simply has no jurisdiction to issue a writ of
preliminary attachment against the defendant or his property.

 a rigorous remedy which exposes the debtor to humiliation and annoyance, such
[that] it should not be abused as to cause unnecessary prejudice. It is, therefore;
the duty of the court, before issuing the writ, to ensure that all the requisites of
the law have been complied with; otherwise the judge acts in excess of his
jurisdiction and the writ so issued shall be null and void.

9. G.R. No. 102448. August 5, 1992

RICARDO CUARTERO, Petitioner, v. COURT OF APPEALS, ROBERTO
EVANGELISTA and FELICIA EVANGELISTA

Facts:
 Ricardo Cuartero filed a complaint for sum or money against Evangelista
spouses,with prayer for WOPA.
 Lower court issued an order granting ex parte WOPA
 WOPA was issued and summons for Evangelista spouses are likewise prepared
 Copy of WOPA and summons were served upon Evangelista spouses. Deputy
Sheriff Sula immediately levied attached and pulled out the properties In
compliance with it.
 Evangelista spoused filed a motion to set aside the order and discharge WOA
against them as they said, it was irregularly and improperly issued.
 The court denied such, Evangelista spouses filed SCA for certiorari with CA with
a prayer for WOPI to enjoing the judge form taking further proceedings.
 CA did not grant the prayer for restraining order +WOPI
 Though CA granted petition for certiorari., MR was filed by Cuartero but was
denied on a resolution.

Issues: WON the WOPA may be issued even before summons is served?

Ruling: YES (WOPA was reinstated)

 at the commencement of the action" is interpreted as referring to the date of

the filing of the complaint which is a time before summons is served on the
defendant or even before summons issues. 
 after an action is properly commenced — by filing of the complaint and the
payment of all requisite docket and other fees — the plaintiff may apply and
 obtain a writ of preliminary attachment upon the fulfillment of the pertinent
requisites laid down by law, and that he may do so at any time, either before or
after service of summons on the defendant. And this, indeed, has been the
immemorial practice sanctioned by the courts: for the plaintiff or other proper
party to incorporate the application for attachment in the complaint or other
appropriate pleading (counter-claim, crossclaim, 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
 It is incorrect to theorize that after an action or proceeding has been commenced
and jurisdiction over the person of the plaintiff has been vested in the Court, but
before acquisition of jurisdiction over the person of the defendant (either by
service of summons or his voluntary submission to the Court’s authority), nothing
can be validly done by the plaintiff or the Court. It is wrong to assume that the
validity of acts done during the period should be dependent on, to 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 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 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.
 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;
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 had as yet been obtained. The court had failed to serve the
summons to the defendant

10. G.R. No. 106989 May 10, 1994

H.B. ZACHRY COMPANY INTERNATIONAL, petitioner, 
vs.
HON. COURT OF and VINNEL-BELVOIR CORPORATION, respondents.

G.R. No. 107124 May 10, 1994

VINNEL-BELVOIR CORPORATION, petitioner, 

vs.
THE COURT OF APPEALS and H.B. ZACHRY COMPANY INTERNATIONAL

“WOPA may be issued with subsequent service of summons, but WOPA may not be
enforced until the court acquired jurisdiction over the person of the defendant”

Facts:
VBC entered into a written Subcontract Agreement 5 with Zachry, a foreign corporation.
The latter had been engaged by the United States Navy to design and construct 264
Family Housing Units at the US Naval Base at Subic, Zambales. Under the agreement,
specifically under Section 3 on Payment, VBC was to perform all the construction work
on the housing project and would be paid "for the performance of the work the sum of
Six Million Four Hundred Sixty-eight Thousand U.S. Dollars (U.S. $6,468,000.00),
subject to additions and deductions for changes as hereinafter provided." This "lump
sum price is based on CONTRACTOR'S proposal, dated 21 May 1987 (including
drawings), submitted to OWNER for Alternate Design-Apartments." 

When VBC had almost completed the project, Zachry complained of the quality of work,
making it a reason for its decision to take over the management of the project

BC submitted to Zachry on 10 January 1990 a detailed computation of the cost to

complete the subcontract on the housing project. According to VBC's computation, there
remains a balance of $1,103,000.00 due in its favor as of 18 January 1990. This amount
includes the sum of $200,000.00 allegedly withheld by Zachry and the labor escalation
adjustment granted earlier by the US Navy in the amount of $282,000.00 due VBC.
Zachry, however, not only refused to acknowledge the indebtedness but continually
failed to submit to VBC a statement of accumulated costs, as a result of which VBC was
prevented from checking the accuracy of the said costs. On 2 March 1990, VBC wrote
Zachry a letter demanding compliance with its obligations. 9 Zachry still failed to do so.
VBC made representations to pursue its claim, including a formal claim with the Officer-
in-Charge of Construction, NAVFAC Contracts, Southwest Pacific, 10 which also failed.

VBC filed a complaint with RTC Makati against Z for the COSM with prayer for WOPA
over Zachry’s bank account in Subic Base.
The court granted the application for issuance of WOPA fixing the attachment of
P24,266,000.00. WOPA was issued after VBC placed required bond.
Return of the summon: the sheriff came to their office in A.M. Oreta & Co. at 5th Floor,
Ermita Building, Arquiza corner Alhambra streets, Ermita, Manila, 6 th floor, but
defendant’s office was closed as it only hold office Mon & Tuesday per information
gathered form the adjacent office.

VBC filed an Amended Complaint 15 in Civil Case No. 90-772 to implead as additional
defendants the US Navy Treasury Office-Subic Naval Base and Captain A.L. Wynn, an
officer of the US Navy, against whom VBC prayed for a restraining order or preliminary
injunction to restrain the latter from preparing the treasury warrant checks to be paid to
Zachry and the former from signing the said checks and to restrain both from making
any further payments to Zachry.

Zachary filed MTD the complaint on the ground of lack of jurisdiction over its person
because summons were not validly served on it.

its resident agent on whom any summons and legal processes against it may be
served. Atty. Nunag's address is at the 10th Floor, Shell House, 156 Valero St., Makati,
Metro Manila.

Zachary filed an Omnibus motion, grounds:

(a) to dismiss the complaint for lack of jurisdiction over its person since the subsequent
service of summons did not cure the jurisdictional defect it earlier pointed out and, in the
alternative, to dismiss the case or suspend the proceedings therein for failure of the
plaintiff to submit the controversy in question to arbitration as provided for in its contract
with Zachry; and
(b) to dissolve the writ of attachment of 26 March 1990 "for having been issued without
jurisdiction, having been issued prior to the service of summons." 

VBC opposed the Omnibus Motion. Pleadings related to the Omnibus Motion were
subsequently filed

Trial court denied the omnibus motion and directed the defendants to file their answer
within the period provided by law.

MR was filed, which VBC opposed, the court denied the MR by ruling that WOPA was
issued regulardy and violations of subcontract agreement and violations on
subcontractual agreement were heard on merits.

On appeal to CA, on the grounds that WOPA was made outside or in excess of
respondent court’s jursidiciton was made.,
CA issued a TRO. Court of Appeals held that summons was served on Zachry only on
24 April 1990; hence, applying Sievert vs. Court of Appeals, 32 the trial court "had no
authority yet to act coercively against the defendant" when it issued the writ of
attachment on 21 March 1990

VBC filed MR which CA denied.

Issues: WON WOPA was validly made, amidst the subsequent service of summons?

Ruling: Yes.

Note: VBC relied on the ruling of DLPC vs CA (pwede na later ang summons I to ff
nalang).

the writ of attachment cannot be validly enforced through the levy of Zachry's property
before the court had acquired jurisdiction over Zachry's person either through its
voluntary appearance or the valid service of summons upon it. 42 To put it in another
way, a distinction should be made between the issuance and the enforcement of the
writ. The trial court has unlimited power to issue the writ upon the commencement of the
action even before it acquires jurisdiction over the person of the defendant, but
enforcement thereof can only be validly done after it shall have acquired such
jurisdiction. 

With reference to Cartero vs CA,

3 stages of WOPA:
 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 person of 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.