provisional remedies

1 | P R O V I S I O N A L R E M E D I E S

G.R. No. L-252 March 30, 1946 TRANQUILINO CALO and DOROTEO SAN JOSE, petitioners, vs. ARSENIO C. ROLDAN, Judge of First Instance of Laguna, REGINO RELOVA and TEODULA BARTOLOME,respondents.

FERIA, J.:

This is a petition for writ of certiorari against the respondent Judge Arsenio C. Roldan of the Court First Instance of Laguna, on the ground that the latter has exceeded his jurisdiction or acted with grave abuse of discretion in appointing a receiver of certain lands and their fruits which, according to the complainant filed by the other respondents, as plaintiffs, against petitioners, as defendants, in case No. 7951, were in the actual possession of and belong to said plaintiffs.

The complaint filed by plaintiffs and respondents against defendants and petitioners in the Court of First Instance of Laguna reads as follows:

1. That the plaintiffs and the defendants are all of legal age, Filipino citizens, and residents of Pila, Laguna; the plaintiffs are husband and wife..

2. That the plaintiff spouses are the owners and the possessors of the following described parcels of land, to wit:.

x x x x x x x x x

3. That parcel No. (a) described above is now an unplanted rice land and parcel No. (b) described in the complaint is a coconut land, both under the possession of the plaintiffs..

4. That the defendants, without any legal right whatsoever and in connivance with each other, through the use of force, stealth, threats and intimidation, intend or are intending to enter and work or harvest whatever existing fruits may now be found in the lands above-mentioned in violation of plaintiff's in this case ineffectual..

5. That unless defendants are barred, restrained, enjoined, and prohibited from entering or harvesting the lands or working therein through ex-parte injunction, the plaintiffs will suffer injustice, damages and irreparable injury to their great prejudice..


6. That the plaintiffs are offering a bond in their application for ex-parte injunction in the amount of P2,000, subject to the approval of this Hon. Court, which bond is attached hereto marked as Annex A and made an integral part of this complaint..

7. That on or about June 26, 1945, the defendants, through force, destroyed and took away the madre-cacao fencer, and barbed wires built on the northwestern portion of the land designated as parcel No. (b) of this complaint to the damage and prejudice of the plaintiffs in the amount of at least P200..

Wherefore, it is respectfully prayed:.

(a) That the accompanying bond in the amount of P2,000 be approved;

(b) That a writ of preliminary injunction be issued ex-parte immediately restraining, enjoining and prohibiting the defendants, their agents, servants, representatives, attorneys, and, (or) other persons acting for and in their behalf, from entering in, interfering with and/or in any wise taking any participation in the harvest of the lands belonging to the plaintiffs; or in any wise working the lands above-described;

(c) That judgment be rendered, after due hearing, declaring the preliminary injunction final;.

(d) That the defendants be condemned jointly and severally to pay the plaintiffs the sum of P200 as damages; and.

(e) That plaintiffs be given such other and further relief just and equitable with costs of suit to the defendants.

The defendants filed an opposition dated August 8, 1945, to the issuance of the writ of preliminary injunction prayed for in the above-quoted complaint, on the ground that they are owners of the lands and have been in actual possession thereof since the year 1925; and their answer to the complaint filed on August 14, 1945, they reiterate that they are the owners and were then in actual possession of said property, and that the plaintiffs have never been in possession thereof.

The hearing of the petition for preliminary injunction was held on August 9, 1945, at which evidence was introduced by both parties. After the hearing, Judge Rilloraza, then presiding over the Court of First Instance of Laguna, denied the petition on the ground that the defendants were in actual possession of said lands. A motion for reconsideration was filed by plaintiffs on August 20, 1945, but


said motion had not yet, up to the hearing of the present case, been decided either by Judge Rilloraza, who was assigned to another court, or by the respondent judge.

The plaintiffs (respondents) filed on September 4, 1945, a reply to defendants' answer in which, among others, they reiterate their allegation in the complaint that they are possessors in good faith of the properties in question.

And on December 17, plaintiffs filed an urgent petition ex-parte praying that plaintiffs' motion for reconsideration of the order denying their petition for preliminary injunction be granted and or for the appointment of a receiver of the properties described in the complaint, on the ground that (a) the plaintiffs have an interest in the properties in question, and the fruits thereof were in danger of being lost unless a receiver was appointed; and that (b) the appointment of a receiver was the most convenient and feasible means of preserving, administering and or disposing of the properties in litigation which included their fruits. Respondents Judge Roldan, on the same date, December 17, 1945, decided that the court would consider the motion for reconsideration in due time, and granted the petition for appointment of and appointed a receiver in the case.

The question to be determined in the present special civil action of certiorari is, whether or not the respondent judge acted in excess of his jurisdiction or with grave abuse of discretion in issuing the order appointing a receiver in the case No. 7951 of the Court of First Instance of Laguna; for it is evident that there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of the law against the said order, which is an incidental or interlocutory one.

It is a truism in legal procedure that what determines the nature of an action filed in the courts are the facts alleged in the complaint as constituting the cause of the action. The facts averred as a defense in the defendant's answer do not and can not determine or change the nature of the plaintiff's action. The theory adopted by the plaintiff in his complaint is one thing, and that of the defendant in his answer is another. The plaintiff has to establish or prove his theory or cause of action in order to obtain the remedy he prays for; and the defendant his theory, if necessary, in order to defeat the claim or action of the plaintiff..

According to the complaint filed in the said case No. 7951, the plaintiff's action is one of ordinary injunction, for the plaintiffs allege that they are the owners of the lands therein described, and were in actual possession thereof, and that "the defendants without any legal right whatever and in connivance with each other, through the use of force, stealth, threat and intimidation, intend or are intending


to enter and work or harvest whatever existing fruits may be found in the lands above mentioned in violation of plaintiffs' proprietary rights thereto;" and prays "that the defendants, their agents, servants, representatives, and other persons acting for or in their behalf, be restrained, enjoined and prohibited from entering in, interfering with, or in any way taking any participation in the harvest of the lands above describe belonging to the plaintiffs."

That this is the nature of plaintiffs' action corroborated by the fact that they petitioned in the same complaint for a preliminary prohibitory injunction, which was denied by the court in its order dated August 17, 1945, and that the plaintiffs, in their motion for reconsideration of said order filed on August 20 of the same year, and in their urgent petition dated December 17, moving the court to grant said motion for reconsideration, reiterated that they were actual possessors of the land in question.

The fact that plaintiffs, in their reply dated September 4, after reiterating their allegation or claim that they are the owners in fee simple and possessors in good faith of the properties in question, pray that they be declared the owners in fee simple, has not changed the nature of the action alleged in the complaint or added a new cause of action thereto; because the allegations in plaintiffs' reply were in answer to defendants' defenses, and the nature of plaintiffs' cause of action, as set forth in their complaint, was not and could not be amended or changed by the reply, which plaintiffs had the right to present as a matter of course. A plaintiff can not, after defendant's answer, amend his complaint by changing the cause of action or adding a new one without previously obtaining leave of court (section 2, Rule 17)..

Respondents' contention in paragraph I of their answer that the action filed by them against petitioners in the case No. 7951 of the Court of First Instance of Laguna is not only for injunction, but also to quiet title over the two parcels of land described in the complaint, is untenable for the reasons stated in the previous paragraph. Besides, an equitable action to quiet title, in order to prevent harrassment by continued assertion of adverse title, or to protect the plaintiff's legal title and possession, may be filed in courts of equity (and our courts are also of equity), only where no other remedy at law exists or where the legal remedy invokable would not afford adequate remedy (32 Cyc., 1306, 1307). In the present case wherein plaintiffs alleged that they are the owners and were in actual possession of the lands described in the complaint and their fruits, the action of


injunction filed by them is the proper and adequate remedy in law, for a judgment in favor of plaintiffs would quiet their title to said lands..

The provisional remedies denominated attachment, preliminary injunction, receivership, and delivery of personal property, provided in Rules 59, 60, 61, and 62 of the Rules of Court, respectively, are remedies to which parties litigant may resort for the preservation or protection of their rights or interest, and for no other purpose, during the pendency of the principal action. If an action, by its nature, does not require such protection or preservation, said remedies can not be applied for and granted. To each kind of action or actions a proper provisional remedy is provided for by law. The Rules of Court clearly specify the case in which they may be properly granted. .

Attachment may be issued only in the case or actions specifically stated in section 1, Rule 59, in order that the defendant may not dispose of his property attached, and thus secure the satisfaction of any judgment that may be recovered by plaintiff from defendant. For that reason a property subject of litigation between the parties, or claimed by plaintiff as his, can not be attached upon motion of the same plaintiff..

The special remedy of preliminary prohibitory injunction lies when the plaintiff's principal action is an ordinary action of injunction, that is, when the relief demanded in the plaintiff's complaint consists in restraining the commission or continuance of the act complained of, either perpetually or for a limited period, and the other conditions required by section 3 of Rule 60 are present. The purpose of this provisional remedy is to preserve thestatus quo of the things subject of the action or the relation between the parties, in order to protect the rights of the plaintiff respecting the subject of the action during the pendency of the suit. Because, otherwise or if no preliminary prohibition injunction were issued, the defendant may, before final judgment, do or continue the doing of the act which the plaintiff asks the court to restrain, and thus make ineffectual the final judgment rendered afterwards granting the relief sought by the plaintiff. But, as this court has repeatedly held, a writ of preliminary injunction should not be granted to take the property out of the possession of one party to place it in the hands of another whose title has not been clearly established..

A receiver may be appointed to take charge of personal or real property which is the subject of an ordinary civil action, when it appears that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or litigation, and that such property or fund is in danger of


being lost, removed or materially injured unless a receiver is appointed to guard and preserve it (section 1 [b], Rule 61); or when it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering or disposing of the property in litigation (section 1 [e] of said Rule). The property or fund must, therefore be in litigation according to the allegations of the complaint, and the object of appointing a receiver is to secure and preserve the property or thing in controversy pending the litigation. Of course, if it is not in litigation and is in actual possession of the plaintiff, the latter can not apply for and obtain the appointment of a receiver thereof, for there would be no reason for such appointment.

Delivery of personal property as a provisional remedy consists in the delivery, by order of the court, of a personal property by the defendant to the plaintiff, who shall give a bond to assure the return thereof or the payment of damages to the defendant in the plaintiff's action to recover possession of the same property fails, in order to protect the plaintiff's right of possession of said property, or prevent the defendant from damaging, destroying or disposing of the same during the pendency of the suit.

Undoubtedly, according to law, the provisional remedy proper to plaintiffs' action of injunction is a preliminary prohibitory injunction, if plaintiff's theory, as set forth in the complaint, that he is the owner and in actual possession of the premises is correct. But as the lower court found at the hearing of the said petition for preliminary injunction that the defendants were in possession of the lands, the lower court acted in accordance with law in denying the petition, although their motion for reconsideration, which was still pending at the time the petition in the present case was heard in this court, plaintiffs insist that they are in actual possession of the lands and, therefore, of the fruits thereof.

From the foregoing it appears evident that the respondent judge acted in excess of his jurisdiction in appointing a receiver in case No. 7951 of the Court of First Instance of Laguna. Appointment of a receiver is not proper or does not lie in an action of injunction such as the one filed by the plaintiff. The petition for appointment of a receiver filed by the plaintiffs (Exhibit I of the petition) is based on the ground that it is the most convenient and feasible means of preserving, administering and disposing of the properties in litigation; and according to plaintiffs' theory or allegations in their complaint, neither the lands nor the palay harvested therein, are in litigation. The litigation or issue raised by plaintiffs in their complaint is not the ownership or possession of the lands and their fruits. It


is whether or not defendants intend or were intending to enter or work or harvest whatever existing fruits could then be found in the lands described in the complaint, alleged to be the exclusive property and in the actual possession of the plaintiffs. It is a matter not only of law but of plain common sense that a plaintiff will not and legally can not ask for the appointment or receiver of property which he alleges to belong to him and to be actually in his possession. For the owner and possessor of a property is more interested than persons in preserving and administering it.

Besides, even if the plaintiffs had amended their complaint and alleged that the lands and palay harvested therein are being claimed by the defendants, and consequently the ownership and possession thereof were in litigation, it appearing that the defendants (now petitioners) were in possession of the lands and had planted the crop or palay harvested therein, as alleged in paragraph 6 (a) and (b) of the petition filed in this court and not denied by the respondent in paragraph 2 of his answer, the respondent judge would have acted in excess of his jurisdiction or with a grave abuse of discretion in appointing a receiver thereof. Because relief by way of receivership is equitable in nature, and a court of equity will not ordinarily appoint a receiver where the rights of the parties depend on the determination of adverse claims of legal title to real property and one party is in possession (53 C. J., p. 26). The present case falls within this rule..

In the case of Mendoza vs. Arellano and B. de Arellano, this court said:

Appointments of receivers of real estate in cases of this kind lie largely in the sound discretion of the court, and where the effect of such an appointment is to take real estate out of the possession of the defendant before the final adjudication of the rights of the parties, the appointment should be made only in extreme cases and on a clear showing of necessity therefor in order to save the plaintiff from grave and irremediable loss or damage. (34 Cyc., 51, and cases there cited.) No such showing has been made in this case as would justify us in interfering with the exercise by trial judge of his discretion in denying the application for receiver. (36 Phil., 59, 63, 64.).

Although the petition is silent on the matter, as the respondents in their answer allege that the Court of First Instance of Laguna has appointed a receiver in another case No. 7989 of said court, instituted by the respondents Relova against Roberto Calo and his brothers and sisters, children of Sofia de Oca and Tranquilino Calo (petitioner in this case), and submitted copy of the complaint


filed by the plaintiffs (now respondents) in case No. 7989 (Exhibit 9 of the respondents' answer), we may properly express and do hereby express here our opinion, in order to avoid multiplicity of suits, that as the cause of action alleged in the in the complaint filed by the respondents Relova in the other case is substantially the same as the cause of action averred in the complaint filed in the present case, the order of the Court of First Instance of Laguna appointing a receiver in said case No. 7989 was issued in excess of its jurisdiction, and is therefore null and void.

In view of all the foregoing, we hold that the respondent Judge Arsenio C. Roldan of the Court of First Instance of Laguna has exceeded his jurisdiction in appointing a receiver in the present case, and therefore the order of said respondent judge appointing the receiver, as well as all other orders and proceedings of the court presided over by said judge in connection with the receivership, are null and void.

As to the petitioners' petition that respondents Relova be punished for contempt of court for having disobeyed the injunction issued by this court against the respondents requiring them to desist and refrain from enforcing the order of receivership and entering the palay therein, it appearing from the evidence in the record that the palay was harvested by the receiver and not by said respondents, the petition for contempt of court is denied. So ordered, with costs against the respondents.


G.R. No. L-63225 April 3, 1990 ELEAZAR V. ADLAWAN, petitioner, vs. HON. JUDGE VALERIANO P. TOMOL, as Presiding Judge of Branch XI of RTC-Cebu (formerly Branch XI, CFI-Cebu), Branch XXVII of RTC-Cebu, with Station in Lapu-Lapu City (formerly Branch XVI, CFI-Cebu, Presided over by former Judge Ceferino E. Dulay), and ABOITIZ COMPANY, INC., respondents.

FERNAN, C.J.:

This is a special civil action for certiorari and mandamus seeking to annul : [a] the Order dated December 20, 1982 of respondent Judge Valeriano P. Tomol, Branch XI of CFI-Cebu, now Branch XI, RTC-Cebu, in Civil Case No. R-21761, entitled "Aboitiz and Company, Inc. v. Adlawan, et al" denying the motion of the defendant to require the Provincial Sheriff of Cebu to deliver to him the properties seized by the Sheriff of Davao City and [b] the Order dated September 4, 1982 of Judge Ceferino F. Dulay, Branch XVI of the Court of First Instance of Cebu, now Branch XXVII, RTC-Cebu, Lapu-Lapu City, in Civil Case No. 619-L between the same parties, denying for lack of merit petitioner's Omnibus Motion to reconsider, dissolve and set aside the Writ of seizure and Replevin.

The antecedent facts are as follows:

Petitioner Eleazar A. Adlawan, a private contractor, was awarded by the National Irrigation Administration (NIA) and the Bureau of Public Highways (BPH) contracts for the construction of various infrastructure projects of the government to perform his obligations thereunder, petitioner sought financial assistance and support from private respondent Aboitiz and Company, Inc. For failure of petitioner to pay the installments and amortizations, private respondent filed on May 13, 1982 before the Court of First Instance of Cebu a complaint 1 for the collection of a sum of money and damages including an ex-parte application for the issuance of a writ of preliminary attachment against the property of petitioner as defendant therein. The Executive Judge without notice and hearing issued an order 2 on May 14, 1982 directing the issuance of a writ of preliminary attachment against all the properties of petitioner, real and personal, upon the filing of an attachment bond for Four Million Pesos. The case, docketed as Civil Case No. R21761 was raffled and later assigned to Branch XI of the Court of First


Instance of Cebu, presided by respondent Judge Valeriano P. Tomol. On May 26, 1982, writs of preliminary attachment were issued addressed to the Sheriffs of Cebu, Davao City, Quezon City, Davao del Sur and Davao del Norte, directing them to attach the real and personal properties of petitioner within their respective jurisdictions. On the strength of the writ of preliminary attachment, the bulk of petitioner's property in Davao City was attached.

Subsequently, private respondent filed an Urgent Ex-parte Motions 3 asking the court that it be allowed to take possession and custody of the attached properties to protect its interest and to avoid any damage or deterioration considering that the sheriff has no proper place to store or deposit said properties. This was granted by respondent Judge on May 28, 1982 for being meritorious.

Meanwhile, petitioner before submitting an answer to the complaint, filed a Motion for a Bill of Particulars 4 and to Set Aside the Ex-Parte Writ of Preliminary Attachment 5 which was opposed by private respondent. Finding that the discharge of the writ of attachment is unavoidable on the ground that it was issued ex-parte, without notice and hearing, based principally on the alleged removal or disposition by the defendants of their properties with intent to defraud the plaintiff, which allegation was limited to a bare assertion and not persuasively substantial, respondent Judge issued an Orders 6 dated July 6, 1982, the dispositive portion of which reads:

Accordingly, the Order of May 14, 1982 granting the writ of preliminary attachment is lifted and vacated. The writs issued on 26 May 1982, are dissolved and recalled and the properties levied and seized by the Sheriffs of Cebu and Davao City are discharged and released.

SO ORDERED. (Emphasis supplied)

In view of the foregoing, private respondent Aboitiz and Company, Inc. filed an Urgent Ex-Parte Motion 7 dated July 7, 1982 praying for a stay of the July 6, 1982 Order dissolving the writ of preliminary attachment, thus maintaining the status quo. Private respondent further prayed for the court to direct the sheriff of Davao City to desist and/or stop the enforcement or implementation of the order lifting the attachment and to grant them fifteen (15) days to elevate the matter to the Appellate Court. Consequently, respondent Judge Tomol issued on the same day an Orders 8 granting the motion prayed for by private respondent Aboitiz and Company, Inc. Thus, the July 6, 1982 Order was stayed.


In the meantime, three (3) Deputy Sheriffs of Cebu implemented the Order lifting the Writ of Attachment and were able to pull out some personal properties of petitioner Adlawan. They were not able to take out all the attached properties in view of the subsequent Order of respondent judge to stay its implementation.

As petitioner's Motion for a Bill of Particulars was not immediately acted upon, he was not able to file an answer or interpose any counterclaim. For this reason, petitioner filed an Application for Award of Damages dated July 9, 1982 asking for a reasonable rental on the attached heavy construction equipment, machineries and other properties at the rate of P30,000.00 per day from the date of seizure until said properties are actually returned to his possession and control.9

Before the court a quo could act on the motions of petitioner Adlawan, and before he could file an answer, his motion for a bill of particulars not having been acted upon, private respondent Aboitiz and Company, Inc., filed on July 13, 1982 a Notice of Dismissal or Withdrawal of Complaint 10 as a matter of right in accordance with Section 1, Rule 17 of the Rules of Court. Respondent Judge Tomol issued an Order 11 dated July 15, 1982, the dispositive portion of which reads:

Accordingly, the termination of this case upon the notice of dismissal voluntarily filed by the plaintiff is hereby confirmed. For emphasis, all orders of this Court issued prior to the filing of said notice of dismissal are each and all rendered functus officio. By the same token, all pending incidents, particularly the defendant's motion for a bill of particulars and their petition for damages against the Plaintiffs attachment bond, are now beyond the competence of this Court to consider for being moot and academic.

SO ORDERED

Petitioner Adlawan filed a Motion 12 dated July 28, 1982 praying for the issuance of an order to the Provincial Sheriff of Cebu to implement and enforce the Order of respondent Judge dated July 6, 1982 dissolving the writ of preliminary attachment and to secure the delivery of the attached properties to the petitioner. Respondent Judge issued an Order 13 dated December 20, 1982 denying the Motion in view of the institution by private respondent Aboitiz and Company, Inc. of a civil case (No. 619-L) for delivery of Personal Properties with Replevin and Damages before the Court of First Instance of Cebu, Branch XVI in Lapu-Lapu City on July 13, 1982 and the filing of petitioner Adlawan of a case for damages (Civil Case No. 22265) before the Court of First Instance of Cebu, Branch


X, in connection with the seizure of his properties under the writ of preliminary attachment.

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

Hence, the present petition for certiorari and mandamus impleading respondent Judge Valeriano P. Tomol as Presiding Judge of Branch XI of the Court of First Instance of Cebu (now Branch XI, RTC-Cebu) and Branch XVI, CFI-Cebu presided by Judge Ceferino E. Dulay in Lapu-Lapu City (now Branch XXVII of RTC Cebu in Lapu-Lapu) and private respondent Aboitiz and Company, Inc.

The issues raised by petitioner Adlawan are the following, to wit:

1) After the attachment of petitioner's properties was dissolved and discharged because it was found by respondent Judge to be wrongful and illegal, does it not constitute grave and manifest abuse of discretion on the part of the same respondent judge TO REFUSE to implement his own order for the return of the attached properties to petitioner simply because private respondent suddenly dismissed its complaint?

2) On the other hand, the court, after having deprived petitioner possession and enjoyment of his properties, by reason of an attachment which, subsequently, was dissolved and discharged, was it not the clear, specific


and inescapable duty of that same court, to order that said properties be returned and restored to the possession and enjoyment of petitioner?

3) Are not the attached properties of petitioner under the custodia legis of the attaching court Branch XI, CFI-Cebu (now Branch XI, RTC-Cebu) and, therefore, subject to its jurisdiction and control? If so, does it not constitute grave and manifest abuse of discretion on the part of the attaching court to literally wash his (sic) hands off any duty or responsibility by considering himself (sic) as having been divested of authority to deal with such properties?

4) Did not the Lapu-Lapu Branch of CFI-Cebu act, without or in excess of his (sic) jurisdiction or, at least, with grave abuse of discretion, in taking cognizance of the replevin case which involves properties already in custodia legis of Branch XI of CFI-Cebu?

5) On the other hand, was it not the clear, specific and inescapable duty of the Lapu-Lapu Branch of CFI-Cebu, to dismiss the replevin case and dissolve the writ of replevin, not only because of the principle of custodia legis but also because it was in clear violation of Adm. Order No. 6 of this Honorable Supreme Court, which amends Adm. Orders No. 147 and 328 of the Department (now Ministry) of Justice? 16

From the recital of facts may be gleamed a series of peculiar events and circumstances requiring examination and looking into in order that justice and equity may be subserved.

Petitioner's properties were attached on the strength of the writs of preliminary attachment issued without notice and hearing by the executive judge. These attached properties were given to the custody of private respondent, Aboitiz and Company, Inc. Petitioner then filed a Motion to Dissolve the Writ of Attachment which was granted by respondent Judge Tomol. Thus, petitioner was able to recover some of his properties. But on the following day, this order was stayed by the same respondent judge leaving the rest of petitioner's properties with private respondent. Later, private respondent withdrew its complaint which was confirmed by respondent Judge Tomol. Petitioner Adlawan filed a motion to have the rest of his properties returned but respondent judge refused to act on said motion due to cases filed by both parties in the different branches of the Court of First Instance of Cebu relating to the same case.


After a careful examination of the records of the case We rule in favor of petitioner Adlawan.

There is no question that the order dated July 6, 1982 of respondent Judge Valeriano P. Tomol, Jr. lifting and vacating the order granting the writ of preliminary attachment is a valid order, issued while he had jurisdiction over the case. The execution of aforesaid order of July 6, 1982 was stayed for a period of fifteen (15) days on motion of the plaintiff to enable the latter to question the propriety or impropriety of the same in the appellate court. Instead, plaintiff filed a civil case for delivery of Personal Properties with Replevin and Damages with another branch of the CFI of Cebu. Accordingly, having failed to appeal or question the aforementioned order in the appellate court as originally manifested, the same became final and executory.

Section 1, Rule 39 of the Revised Rules of Court provides:

Execution upon final judgment or orders. Execution shall issue upon a judgment or order that finally disposes of the action or proceeding. Such execution shall issue as a matter of right upon the expiration of the period to appeal therefrom if no appeal has been perfected.

It is basic that once a judgment becomes final, the prevailing party is entitled as a matter of right to a Writ of Execution, and the issuance thereof is the Court's ministerial duty."17

But as earlier stated, the reasons advanced by respondent Judge Tomol for denying the enforcement of his order dated July 6, 1982 which lifted the writ of attachment and the restoration of the seized properties to the defendant petitioner herein are: [a] the filing by private respondent of Civil Case No. 619-L with Branch XVI of CFI-Lapu-Lapu City for delivery of Personal Properties with Replevin and Damages which as a consequence, the same properties involved in this case were seized under a writ of replevin upon order of aforesaid court and [b] the filing by petitioner of Civil Case No. 22265 before Branch X of the Court of First Instance of Cebu, for damages.

Hence, the issues in this case center on the nature and purpose of the writ of attachment.

A writ of preliminary attachment is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property or properties of the defendant therein, the same to be held thereafter by the Sheriff as security


for the satisfaction of whatever judgment might be secured in said action by the attaching creditor against the defendant. 18

The provisional remedy of attachment is available in order that the defendant may not dispose of his property attached, and thus secure the satisfaction of any judgment that may be secured by plaintiff from defendant. 19 The purpose and function of an attachment or garnishment is two-fold. First, it seizes upon property of an alleged debtor in advance of final judgment and holds it subject to appropriation thus prevents the loss or dissipation of the property by fraud or otherwise. Second, it subjects to the payment of a creditor's claim property of the debtor in those cases where personal service cannot be obtained upon the debtor. 20 This remedy is to secure a contingent lien on defendant's property until plaintiff can, by appropriate proceedings, obtain a judgment and have such property applied to its satisfaction, or to make some provision for unsecured debts in cases where the means of satisfaction thereof are liable to be removed beyond the jurisdiction, or improperly disposed of or concealed, or otherwise placed beyond the reach of creditors. 21

Attachment is an ancillary remedy. It is not sought for its own sake but rather to enable the attaching party to realize upon relief sought and expected to be granted in the main or principal pal action. 22

The remedy of attachment is adjunct to the main suit, therefore, it can have no independent existence apart from a suit on a claim of the plaintiff against the defendant. In other words, a attachment or garnishment is generally ancillary to, and dependent on, a principal proceeding, either at law or in equity, which has for its purpose a determination of the justice of creditor's demand. 23

Thus, this Court ruled that upon levy by attachment of the property in question by order of the Court, said property fell into custodia legis of that court for purposes of that civil case only. Any relief against such attachment and the execution an issuance of a writ of possession that ensued subsequently could be disposed of only in that case. 24

More specifically, it was held that courts have no jurisdiction to order the delivery of personal property (replevin) to the plaintiff if the property is under attachment. 25 Only courts having supervisory control or superior jurisdiction in the premises, have the right to interfere with and change possession of property in custodia legis. 26


More recently, this Court ruled that the garnishment of property to satisfy a writ of execution operates as an attachment and fastens upon the property a lien by which the property is brought under the jurisdiction of the court issuing the writ. It is brought into custodia legis under the sole control of such court. 27

During the life of the attachment, the attached property continues in the custody of the law, the attaching officer being entitled to its possession and liability for its safe keeping. 28

Based on the above-cited principles, it is obvious that the writ of preliminary attachment issued is already dissolved and rendered non-existent in view of the withdrawal of the complaint by Aboitiz and Company, Inc. More importantly, even if the writ of attachment can be considered independently of the main case, the same, having been improperly issued as found by respondent Judge Tomol himself, is null and void and cannot be a justification for holding petitioners' properties in custodia legis any longer.

To reiterate, an attachment is but an incident to a suit; and unless the suit can be maintained, the attachment must fall.

When Aboitiz and Company, Inc. withdrew its complaint, the attachment ceased to have a leg to stand on. The attached properties of petitioner Adlawan which are in the custody of private respondent Aboitiz should be returned to petitioner. This is only proper and equitable and in consonance with the rules and principles of law. The parties, by the withdrawal of the complaint, should be placed in the same standing as they were before the filing of the same.

Petitioner also questions the jurisdiction of the CFI of Cebu stationed in Lapu-Lapu City to hear the replevin case filed by private respondent in view of the fact that petitioner is a resident of Minglanilla, Cebu while private respondent's principal place of business is in Cebu City. Obviously, the question posed by petitioner is venue.

A reading of the Omnibus Motion filed by petitioner, then defendant therein, would reveal that he not only questioned the jurisdiction of the court but likewise alleged non-jurisdictional grounds for dismissing the replevin case, such as the amount of the bond put up by Aboitiz & Co. as grossly insufficient and that the same properties are involved both in the replevin case and in the original collection case with preliminary attachment. Thus, in so doing, the court acquired jurisdiction over him. In the case of Wang Laboratories, Inc. vs. Mendoza 29 this Court held:


Even though the defendant objects to the jurisdiction of the court, if at the same time he alleges any non-jurisdictional ground for dismissing the action, the court acquires jurisdiction over him.

Furthermore, in the case of City of Cebu v. Consolacion, 30 We held that:

. . . any of the branches of the Court of First Instance of the Province of Cebu, whether stationed in the city of the same name or in any of the municipalities of the province would be proper venue for its trial and determination, it being admitted that the parties are residents of the Province of Cebu . . .

Finally, the employment by counsel for private respondent of dubious procedural maneuvers as what transpired in the case at bar obviously to continue the wrongful and illegal possession and custody of petitioner's properties even after the dissolution of the attachment is to say the least, hardly commendable if not a form of "forum shopping", to seek the court where he may possibly obtain favorable judgment. 31

It may therefore be stated that the right to come before the Courts to redress a grievance or right a wrong should be exercised with prudence and good faith. In the case of Indianapolis v. Chase National Bank, Trustee, 314 U.S. 69, it is opined that "Litigation is the pursuit of practical ends, not a game of chess."

WHEREFORE, in view of the foregoing, this Court rules that the attached properties left in the custody of private respondent Aboitiz and Company, Inc. be returned to petitioner Eleazar V. Adlawan without prejudice to the outcome of the cases filed by both parties.

SO ORDERED.


G.R. No. L-45720 December 29, 1937 VENTURA GUZMAN, petitioner, vs. ALFREDO CATOLICO and SIMEON RAMOS, Judge of First Instance of Isabela, respondents.

VILLA-REAL, J.:

This is a petition filed by Ventura Guzman, praying this court, after proper proceedings, to render judgment declaring illegal and void and setting aside the writ of preliminary attachment issued by the respondent judge, Honorable Simeon Ramos, as judge of the Court of First Instance of Isabela, and ordering the dissolution thereof.

The pertinent facts necessary for the resolution of the legal question raised in the present case are as follows:

On March 8, 1937, the respondent Alfredo Catolico brought an action against the herein petitioner Ventura Guzman in the Court of First Instance of Isabela, for the recovery from the latter of the amount of his fees for services rendered by him as attorney, praying, at the same time, for the issuance of a writ of preliminary attachment against all of the properties adjudicated to said petitioner in special proceedings No. 179 of said court. As grounds for the issuance of said writ of preliminary attachment, he alleged: "That the herein defendant is trying to sell and dispose of the properties adjudicated to him, with intention to defraud his creditors, particularly the herein plaintiff, thereby rendering illusory the judgment that may be rendered against him, inasmuch as he has no other properties outside the same to answer for the fees the court may fix in favor of the plaintiff, this case being one of those mentioned by the Code of Civil Procedure warranting the issuance of a writ of preliminary attachment" (paragraph 8 of the complaint there appears the following affidavits: "I, Alfredo Catolico, of age, married and resident of Tuguegarao, Cagayan, after being duly sworn, declare: That I am the same plaintiff in this case; that I have prepared and read the same (complaint) and that all the allegations thereof are certain and true, to the best of knowledge and belief."


In view of the said complaint and affidavit, the respondent judge, on March 10, 1937, issued an order granting the petition and ordering the issuance of a writ of preliminary attachment, after the filing of the corresponding bond by the plaintiff.

On April 15, 1937, said defendant Ventura Guzman filed a motion for the cancellation of said writ of preliminary attachment on the ground that it had been improperly, irregularly and illegally issued, there being no allegation, either in the complaint or in the affidavit solemnizing it, that there is no other sufficient security for the claim sought to be enforced by the action; that the amount due to the plaintiff, above the legal set-off and counterclaim, is as much as the sum of which the preliminary attachment has been granted, and that the affidavit of the plaintiff is base in mere information and belief.

Said motion was denied by the respondent judge in an order of July 10, 1937.

The only question to be decided in this case is whether or not the requisites prescribed by law for the issuance of a writ of preliminary attachment have been complied with.

Section 426 of the Code of the Civil Procedure provides that "A judge or justice of the peace shall grant an order of attachment when it is made to appear to the judge or justice of the peace by the affidavit of the plaintiff, or of some other person who knows the facts, that a sufficient cause of action exists, and that the case is one of those mentioned in section four hundred and twenty-four, and that there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due to the plaintiff above all legal set-offs or counterclaims is as much as the sum for which the order is granted."

The petitioner, in attacking the legality and validity of the writ of preliminary attachment, which is the subject matter of this petition, relies on the alleged lack of an allegation in the complaint or in the affidavit to the effect "that there is no sufficient security for the claim sought to be enforced by the action and that the amount alleged to be due to the plaintiff above all legal set-offs and counterclaims is as much as the sum for which the writ has been granted", and on the fact that the affidavit is based on mere information and belief of the plaintiff.

With respect to the last requisites just stated above, the affidavit is not defective because in it the therein plaintiff and herein respondent Alfredo Catolico states "that all the allegations thereof are certain and true, to the best of my knowledge and belief", and not that they are so according to his information and belief.


As to the other two requisites, there is no allegation, either in the complaint or in affidavit solemnizing it, to the effect that there is no other sufficient security for the claim which the plaintiff seeks to enforce by his action, and that the amount due him from the defendant, above all legal set-offs and counterclaims, is as much as the sum for which the writ of preliminary attachment has been granted. Now then, does the omission of these two requisites constitute a defect preventing a judge of the Court of First Instance from issuing a writ of preliminary attachment?lawphil.net

Attachment is a juridical institution which has for its purpose to secure the outcome of the trial, that is, the satisfaction of the pecuniary obligation really contracted by a person or believed to have been contracted by him, either by virtue of a civil obligation emanating from contract or law, or by virtue of some crime or misdemeanor that he might have committed, and the writ issued, granting it, is executed by attaching and safely keeping all the movable property of the defendant, or so much thereof as may be sufficient to satisfy the plaintiff's demands (sec. 428, Act No. 190), or by filing a copy of said writ with the register of deeds for the province in which the real property is situated, whether standing upon the records in the name of the defendant or not appearing at all upon the record, which constitutes a limitation of ownership or the right to enjoy or dispose of a thing without further limitations than those established by law (art. 348, Civil Code), since the owner of the property attached cannot dispose of the same free of all liens and encumbrances. The law authorizing the issuance of a writ of preliminary attachment should, therefore, be construed strictly in favor of the judge should require that all the requisites prescribed by law be complied with, without which a judge acquires no jurisdiction to issue the writ. If he does so in spite of noncompliance with said requisites, he acts in excess of his jurisdiction and with the writ so issued by him will be null and void.

The jurisdiction of attachment proceedings being a special one, it cannot be legitimately exercised unless the attaching creditor pursues substantially the essential requirements of the statute, and the court can act only under the special power limited by the statute and according to the forms of procedures it prescribes. . . . (6 C. J., 88, paragraph 121.)

Where the statutes requires the affidavit to show that defendant is indebted to plaintiff in an amount specified, or that the latter is entitled to recover such an amount, over and above all legal payments, set-offs, or counterclaims, compliance with this requirement is essential to confer


jurisdiction to issue the writ. (6 C. J., 132, paragraph 201.)

An affidavit is fatally defective where it fails to comply, at least substantially, with a statutory requirement that is shall state that the indebtedness for which the action is brought has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or, if so secured, that the security has become valueless. . . . (6 C. J., 146, paragraph 231.)

For the foregoing consideration, this court is of the opinion and so holds that failure to allege in a complaint or in the affidavit solemnizing it, or in a separate one, the requisites prescribed by section 426 of the Code of Civil Procedure for the issuance of a writ of preliminary attachment that there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due to the plaintiff above all legal set-offs or counterclaims is as much as the sum for which the order is sought, renders a writ of preliminary attachments issued against the property of a defendant fatally defective, and the judge issuing it acts in excess of his jurisdiction.

Wherefore, the writ of certiorari applied for is granted, and the writ of preliminary attachment issued by the respondent judge in civil case No. 1460 of the Court of First Instance of Isabela, wherein the herein respondent Alfredo Catolico is plaintiff and the herein petitioner Ventura Guzman is defendant, is declared null and void, with costs to respondent Alfredo Catolico. So ordered.


G.R. No. 55381 March 26, 1984 SPOUSES JULIETA SALGADO and JOSE SALGADO, Petitioners, v. HON. COURT OF APPEALS and PHILIPPINE COMMERCIAL & INDUSTRIAL BANK, Respondents.

SYLLABUS

1. REMEDIAL LAW; PROVISIONAL REMEDIES; ATTACHMENT; PURPOSE. The chief purpose of the remedy of attachment is to secure a contingent lien on defendants property until plaintiff can, by appropriate proceedings, obtain a judgment and have such property applied to its satisfaction, or to make some provision for unsecured debts in cases where the means of satisfaction thereof are liable to be removed beyond the jurisdiction, or improperly disposed of or concealed, or otherwise placed beyond the reach of creditors (7 C.J.S. 190). 2. ID.; ID.; ID.; REQUISITES FOR ISSUANCE SHALL NOT ISSUE WHERE DEBTS SUFFICIENTLY SECURED; REASON. The grounds upon which attachment may issue are set forth in Section 1, Rule 57 of the Rules of Court. But quite apart from the grounds stated therein, it is further provided in Section 3 of Rule 57 that "an order of attachment shall be granted only when it is made to appear by the affidavit of the applicant or some other person who personally knows the facts, that . . . there is no other sufficient security for the claim sought to be enforced by the action." The reason for the rule prohibiting attachment where indebtedness was already secured is to prevent the secured creditors from attaching additional property and thus tying up more of the debtors property than was necessary to secure the indebtedness (Blankenship v. Myers, 54 P. 2d 314, 316; 97 Idaho 356 [1975]). Thus, to sustain an order of attachment, "it is incumbent upon plaintiff to establish either of these two facts, to wit: (a) that the obligation had not been secured originally, or (b) that, if secured at its beginning, the security later became valueless." (Giandini v. Ramirez, 54 Pacific Reporter [2d] 91-92).


3. ID.; ID.; ID.; DISCHARGE THEREOF, WHEN PROPER. Section 13, Rule 57 of the Rules of Court authorizes the discharge of an attachment where the same had been improperly or irregularly issued. In National Coconut Corporation v. Hon. Potenciano Pecson, 90 Phil. 809, this Court ruled that when the facts or some of them, stated in the plaintiffs affidavit, are shown by the defendant to be untrue, the writ of attachment may be considered as improperly or irregularly issued. 4. ID.; ID.; ID.; ISSUANCE THEREOF STRICTLY CONSTRUED IN FAVOR OF DEFENDANT. Since attachment is a harsh and rigorous remedy which exposes the debtor to humiliation and annoyance, the rule authorizing its issuance must be strictly construed in favor of the defendant. It should not be abused as to cause unnecessary prejudice. It is the duty of the court before issuing the writ to ensure that all the requisites of the law has been complied with (Guzman v. Catolico, 65 Phil. 257; Salas v. Adil, 90 SCRA 125). AQUINO, J., dissenting:chanrob1es virtual 1aw library 1. REMEDIAL LAW; PROVISIONAL REMEDY; ATTACHMENT; MAY ISSUE EVEN IF DEBT IS SECURED; CASE AT BAR. A writ of attachment may be validly issued although the debt sued upon is secured by mortgages where such mortgages covered not only the debt sued upon but also the debtors other obligations; where the debtors failed to assign to the creditor bank their sugar proceeds which they had given as security for their loan; and where the writ is supported by a sufficient bond.

D E C I S I O N

ESCOLIN, J.:

This is a petition for review filed by the spouses Jose Salgado and Julieta Salgado to set aside the resolution of the then Court of Appeals in CA-G.R. No. SP-09407-R, dated September 18, 1980, which authorized the issuance of a writ of attachment against the property of said petitioners. The pertinent facts that gave rise to this petition are as follows: On May 8, 1978, the Philippine Commercial and Industrial Bank, hereinafter referred to as the Bank, filed an action against


petitioners, docketed as Civil Case No. 29392 of the then Court of First Instance of Rizal, to recover on a promissory note in the amount of P1,510,905.96, inclusive of interest and other bank charges. In its verified complaint, the Bank further prayed for the issuance of a writ of attachment. As grounds therefor it alleged that petitioners had fraudulently misappropriated and/or converted to their own personal use and benefit the sugar proceeds given as security for the payment of the indebtedness; that petitioners are guilty of fraud in contracting their obligation and have concealed, removed or disposed of the properties mortgaged or assigned to the plaintiff, or are concealing, removing or disposing or about to do so, with intent to defraud their creditor; that the obligation sought to be enforced is genuine and, therefore, a sufficient cause of action exists; and that there is no sufficient security for the claim sought to be enforced by the action. Attached to the complaint was the affidavit of Mrs. Helen Osias, Senior Branch Credit Division Manager of the Bank, wherein she stated, among others, "that there is no sufficient security for the claim sought to be enforced by this action."cralaw virtua1aw library On May 9, 1978, the trial court issued an order granting the Banks prayer for preliminary attachment upon a bond in the sum of P1,510,905.96. Upon the filing of said bond, the Deputy Provincial Sheriff levied upon several parcels of land of petitioners situated in the province of Negros Occidental. On September 15, 1978, petitioners Salgado moved to quash the writ of attachment on the ground that respondent Bank made fraudulent misrepresentation in securing the writ by deleting the words "R E M" or "Real Estate Mortgage" from the xerox copy of the promissory note attached to the complaint, thereby "making it appear that the note was unsecured when in truth and in fact it was fully secured by a series of valid and existing real estate mortgages duly registered and annotated in the titles of the affected real properties in favor of the plaintiff Bank." In the same motion, petitioners stressed the lack of factual basis of the Banks claim as to their alleged fraudulent misappropriation or conversion of the sugar proceeds given as security for their obligation. After due hearing, the trial court issued an order dated January 31, 1979 granting petitioners motion and lifting the writ of attachment previously issued. Upon denial of its motion for reconsideration the Bank went to the Court of


Appeals on a petition forcertiorari to annul the order of the trial court lifting the writ of attachment.cralawnad On November 29, 1979, the respondent Court of Appeals, finding that the order of the trial court was not arbitrarily issued, dismissed the petition for lack of merit. However, on motion of the Bank, the respondent Court reconsidered its decision of November 29, 1979 and issued the questioned resolution dated September 18, 1980, which authorized the issuance of a writ of attachment. Hence, the present recourse. We find the petition impressed with merit, The chief purpose of the remedy of attachment is to secure a contingent lien on defendants property until plaintiff can, by appropriate proceedings, obtain a judgment and have such property applied to its satisfaction, or to make some provision for unsecured debts in cases where the means of satisfaction thereof are liable to be removed beyond the jurisdiction, or improperly disposed of or concealed, or otherwise placed beyond the reach of creditors.

1 The grounds upon which attachment may issue are set forth in Section 1, Rule 57 of the Rules of Court. But quite apart from the grounds stated therein, it is further provided in Section 3 of Rule 57 that "an order of attachment shall be granted only when it is made to appear by the affidavit of the applicant or some other person who personally knows the facts, that . . . there is no other sufficient security for the claim sought to be enforced by the action."cralaw virtua1aw library The reason for the rule prohibiting attachment where indebtedness was already secured is to prevent the secured creditors from attaching additional property and thus tying up more of the debtors property than was necessary to secure the indebtedness. 2 Thus, to sustain an order of attachment, "it is incumbent upon plaintiff to establish either of these two facts, to wit: (a) that the obligation had not been secured originally, or (b) that, if secured at its beginning, the security later became valueless."

3 In the instant case, the allegation in the affidavit of the Banks Credit Division Manager, Mrs. Helen Osias, to the effect that "there is no sufficient security for the claim sought to be enforced by this action" has been shown to be false. It is undisputed that the note sued upon "is fully secured by a series of valid and


existing real estate mortgages duly registered and annotated in the titles of the affected real property in favor of the plaintiff Bank."cralaw virtua1aw library Section 13, Rule 57 of the Rules of Court authorizes the discharge of an attachment where the same had been improperly or irregularly issued. In National Coconut Corporation v. Hon. Potenciano Pecson, 4 this Court ruled that when the facts or some of them, stated in the plaintiffs affidavit, are shown by the defendant to be untrue, the writ of attachment may be considered as improperly or irregularly issued. Since attachment is a harsh and rigorous remedy which exposes the debtor to humiliation and annoyance, the rule authorizing its issuance must be strictly construed in favor of the defendant. It should not be abused as to cause unnecessary prejudice. It is the duty of the court before issuing the writ to ensure that all the requisites of the law has been complied with.

5 Accordingly, the resolution of the respondent Court of Appeals, now the Intermediate Appellate Court, dated September 18, 1980, is hereby set aside. No costs. SO ORDERED.


G.R. No. L-12957 October 29, 1918 THE UNITED STATES, plaintiffs-appellee, vs. PONCIANO NAMIT, defendant-appellant.

STREET, J.:

This appeal is brought to this Court to reverse a judgment of the Court of First Instance of the Province of Antique, adjudging the defendant guilty of the crime of murder and sentencing him to cadena perpetua, with the accessories provided by law, and requiring him to indemnify the heirs of the deceased in the sum of P1,000 and to pay the costs.

It appears in evidence that between 6 and 7 o'clock in the evening of February 24, 1917, the deceased Damiano Jordan, and a neighbor, one Fernando Martinez, were talking with each other while standing in the street immediately in front of Jordan's house in the municipality o Sibalom, Province of Antique. While they were so engaged in conversation they were approached by the accused, Ponciano Namit. The latter was at the time apparently entering upon a duty as guard for the round in the capacity of substitute for a son whose turn fell upon this night.

As Ponciano Namit came up he stopped and asked Fernando Martinez if he was on guard that night. Upon receiving an affirmative reply, he asked Damiano Jordan if he too was on guard, and Damiano replied that he was not as it was not his turn. Ponciano thereupon at once ordered Damiano to go up into his house, and as Damiano did not instantly obey, Ponciano in a few moments repeated the command. Damiano in a few moments repeated the command. Damiano then replied that he was going and suiting his actions to his words, turned to start for his house. As he was turning, Ponciano struck him a blow on the left frontal part of the head with a heavy stick.

The end of this stick was supplied with a hatchet-shaped object, possibly of metal, and the knob of this instrument crushed into the head of Damiano and penetrating into the brain, there momentarily remained. Ponciano by giving the stick a jerk succeeded in freeing it and immediately left the scene of the crime. When he pulled the stick out, Damiano fell to the ground. Damiano's wife who was sitting in the door of their house only a short distance away, saw what had


happened and immediately ran down to her husband and told Fernando to aid her in carrying him to the house, which he did. The injured person lived for about six days and died as a result of the wound. It was shown by an autopsy performed on the body that a hole was made in the skull about as large as a half of peso coin. No motive sufficient to account for this unjustifiable attack was proved, though there is a suggestion in the evidence that Ponciano may have been drinking.

After a careful review of the evidence we see no reason for discrediting the testimony of the two eyewitnesses for the prosecution. We find no material contradiction in their statements made either at the trial of this case or at the time of the commission of the crime. The story told by the wife of the deceased Bonifacia Tubigon, appears to be a simple and truthful narrative. The same may be said with regard to the testimony of Fernando Martinez. Both witness apparently evidence a desire to tell what happened without exaggeration or distortion. Another witness for the prosecution. Aurelio Sildo, testified that on the night in question the accused admitted that he had the misfortune to strike Damiano Jordan.

At the trial the accused did not directly admit having struck the fatal blow to Damiano; but he claimed that on the night in question he was passing the place of this occurrence and was there assaulted by some unknown person with the stick. He says that the and the assailant struggled for the possession of the stick and that finally he, Ponciano, kicked his adversary, who fell down, whereupon Ponciano departed. We consider this story unlikely; and the judge as he did, that the accused is the person who caused the death of Damiano Jordan.

Although the complaint charges alevosia as a qualifying circumstance in the commission of the crime, thus elevating the offense to the degree of murder, and although the judge of the trial court found that this element was present in the commission of the offense, we are not satisfied with his conclusion on this point. It is true the two principal witness testify that the blow was given after Damiano Jordan had turned his bask to the accused; but the blow was truck, evidently with great force, upon the left frontal side of the head of Damiano, and it is manifest that this could have been done only if the accused is a left-handed person, supposing him to be standing behind his victim. There is no evidence, however, that Ponciano Namit is left handed; and inasmuch as right handedness prevails among the great majority, it is to be presumed in the absence of the evidence to the contrary, that the accused is right-handed.


This circumstance raises in our mind a reasonable doubt as to whether the parties may not have been facing each other when the blow was delivered. If such were the case, it would be improper to find that the offense was qualified by alevosia. It must be admitted that the attack was sudden and unexpected to Damiano Jordan, and it would perhaps be possible to found upon this the conclusion that the attack was characterized by surprise in such sense as to constitute alevosia. However, in considering a question of this kind, every case must be judged by its particular facts; and we find nothing in the evidence to show with certainty that the aggressor consciously adopted a mode of attack intended to facilitate the perpetration of a homicide without risk to himself. a more reasonable, though still doubtful, inference would possibly be that he did not in fact intend to kill Damiano at all.

In this connection it is worth while to note that Bonifacia Tubigon declares that immediately after the blow was truck Ponciano Namit exclaimed I have long desired to strike some one and I have done so." This would seen to indicate, in the absence of proof of other motive, that the accused was moved by a sudden desire to use his stick and that he struck in obedience to this unreasoning impulse, without thinking of the conditions under which he was acting. Upon the whole we incline to the opinion that the fatal blow was the result of a casual encounter under conditions not sufficiently defined to enable us to say that alevosia was certainly present in the case.1awph!l.net

The offense committed is, in our opinion, to be qualified as homicide, under article 404 of the Penal Code , in the estimation of which no generic circumstance either of an aggravating or attenuating nature should be taken into consideration; and the proper penalty is reclusion temporal in its medium degree. The accused should accordingly be sentence to 14 years 8 months and 1 day, reclusion temporal with the accessories prescribed in article 59 of the Penal Code.

Another feature of the case of some importance is presented in connection with an attachment levied upon the property of the accused to secure the satisfaction of the civil liability incident to the commission of the homicide. It appears that while the cause was pending in the Court of First Instance an attorney appeared in the capacity of private prosecutor, representing the widow of the deceased, and presented an affidavit showing that the accused was selling his property in order to elude the payment of any indemnity to which he would be liable in case of conviction. It was accordingly requested that an attachment should be issued against his property. an order was thereupon made by the court upon April 25,


1917, authorizing an attachment of property to the value of P1,500 unless he should give bond to answer in that amount. The clerk of the court issued the order of attachment upon the same date, and three days later the court rendered its decision finding the accused guilty and ordering him to indemnify the widow and children of the deceased in the sum of P1,000. The attachment was not immediately levied; but after an appeal had been taken, the sheriff, on November 28, 1917, levied the same upon five parcels of land and a house belonging to the accused. It does not appear from the record in this case whether the accused has ever given the bond necessary to procure the dissolution of this attachment, although upon December 19, 1917, after the cause had been brought to this Court by appeal, an order was here entered authorizing the Court of First Instance to act in the latter of dissolving the attachment, if bond should be given.

It is argued that the attachment granted in this case is sustainable under article 589 of the Law of Criminal Procedure of Spain, which is to the following effect:

ART 589. When from the record of a cause appear circumstances tending to establish the guilt of a person, the judge shall require him to give a bond sufficient to secure the pecuniary liabilities which may be finally adjudged, ordering in the same decree the attachment of sufficient property to cover such liabilities, should he fail to give bond.

The amount of the bond shall be fixed in the same decree and it shall not be less than one third of provable amount of the pecuniary liabilities.

We are of the opinion that this provisions and those related to it in the Spanish Code of Criminal Procedure were abrogated by necessary implication upon the enactment of General Orders No. 58. It is true that section 107 of this law recognizes the existence of the civil liability connected with the commission of crime and reserves the privileges previously secured by law to the person injured by the commission of an offense to take part in the prosecution and to recover damages. Nevertheless, we think that the commission of an offense to the procedure contained in the Spanish Code of Criminal Procedure relating to the attachment of property and giving of bond.

Upon reading the entire section 107 of General Orders No. 58, it appears obvious that the right which was intended to be saved by the reservation therein made was the right of the party injured to appear and to be heard in all stages of the case with reference to such liability and to obtain a judgment for the damages occasioned by the wrongful act, as well as the further right to appeal from any decision of the court denying any legal right connected therewith.


It is to be noted that while the "sumario" of Spanish criminal procedure is in many respects similar to the preliminary hearing before a committing magistrate conducted pursuant to section 13 and 14 of General Orders No. 58, there is nevertheless an important difference, which is that the "sumario" constitutes a preliminary stage in the criminal prosecution, and is not merely a step preparatory tot he initiation of the proceedings. The evidence taken in the "sumario" therefore, capable for being used in the plenary stage of the prosecution and if ratification was not required, served as the basis of judgment. (Ley de 18 de junio de 1870 Law of June 18, 1870.) On the contrary, the proceedings in the preliminary hearing never constitute a basis for a subsequent judicial declaration of guilt. The "sumario" has been abrogated by the enactment of General Orders No. 58 above referred to; and the ground expressed in article 589 of the Spanish Code of Criminal Procedure for the attachments of the property of the accused therefore no longer here exists.

With the adoption of General Orders No. 58, there was necessarily introduced into these Islands a system of criminal procedure embodying the principles recognized in the system of criminal procedure generally in vogue in the United States; and any characteristics or rule of the former system inconsistent with these principles must be held to have been abrogated. Attachment in American law is a purely statutory remedy. It does not exist unless expressly given by statute and as it is an extraordinary and summary remedy, it is unavailable except in those cases where the statute expressly permits its issuance.

It remains to consider whether or not the attachment can be sustained under the provisions of section 424, in connection with subsection 5 of section 412 of Code of Civil Procedure. The affidavit made in this case states substantially, we think, that the accused was selling his property with the intent to defraud the persons interested in the enforcement of the civil liability but considered as an application for an attachment under the provisions above cited, in connection with section 426 for the same Code, the affidavit was several respect defective. Disregarding these informalities, however, we are of the opinion that the remedy of attachment there provided is not available as an aide to the enforcement of the civil liability incident to prosecution for crime. These provisions contemplate the pendency of a civil action, and the remedy of attachment is merely an auxiliary to such action. Section 795 of the Code of Civil Procedure in its first paragraph declared that the procedure in all civil actions shall be in accordance with the provisions of the said Code and it is quite evident that the legislature in adopting this Code could not have intended to make its provisions in any respect applicable


to the proceedings in a criminal prosecution. The mere circumstance that a civil prosecution is in our opinion no sufficient reason for holding that the remedy of attachment as designated for use in a civil action is available in the criminal proceeding.

From what has been said result that the attachment effected under the order of the Court of First Instance dated April 25, 1917. must be considered to have been improvidently granted. The same is hereby declared to be of no effect, by this declaration will of course in no wise prejudice the right of the widow and children of the deceased to enforce the payment of the indemnity for which judgment was rendered against the accused. The judgment of the trial court in respect to the penalty imposed upon the accused, is modified by subsisting 14 years 8 months and 1 day, reclusion temporal, with accessories prescribed in article 59 of the Penal Code for so much thereof as imposes the penalty of cadena perpetua, with the accessories prescribed in article 54 of the same Code. As thus modified the judgment of the lower court is affirmed, with costs against the appellant. So ordered.


G.R. No. L-894 July 30, 1947 LUIS F. GENERAL, petitioner, vs. JOSE R. DE VENECIA, Judge of First Instance of Camarines Sur, and PETRA VDA. DE RUEDAS, also representing Ernesto, Armando and Gracia (minors), respondents.

BENGZON, J.:

Petition for certiorari to annul the order of the Court of First Instance of Camarines Sur denying the motion to dismiss the complaint, and to vacate the attachment issued, in civil case No. 364 therein entitled, "Ruedas vs. Luis F. General."

That complaint was filed on June 4, 1946, to recover the value of a promissory note, worded as follows:

For value received, I promise to pay Mr. Gregorio Ruedas the amount of four thousand pesos (P4,000), in Philippine currency within six (6) months after peace has been declared and government established in the Philippines.

Naga, Camarines Sur, September 25, 1944.

(Sgd.) LUIS F. GENERAL

It prayed additionally for preliminary attachment of defendant's property, upon the allegation that the latter was about to dispose of his assets to defraud creditors. Two days later, the writ of attachment was issued upon the filing of a suitable bond.

Having been served with summons, the defendant therein, Luis F. General, submitted, on June 11, 1946, a motion praying for dismissal of the complaint and dissolution of the attachment. He claimed it was premature, in view of the provisions of the debt moratorium orders of the President of the Philippines (Executive Orders Nos. 25 and 32 of 1945). Denial of this motion and of the subsequent plea for reconsideration, prompted the institution of this special civil action, which we find to be meritorious, for the reason that the attachment was improvidently permitted, the debt being within the terms of the decree of moratorium (Executive Order No. 32).


It is our view that, upon objection by the debtor, no court may now proceed to hear a complaint that seeks to compel payment of a monetary obligation coming within the purview of the moratorium. And the issuance of a writ of attachment upon such complaint may not, of course, be allowed. Such levy is necessarily one step in the enforcement of the obligation, enforcement which, as stated in the order, is suspended temporarily, pending action by the Government.

But the case for petitioner is stronger when we reflect that his promise is to pay P4,000 "within six months after peace has been declared." It being a matter of contemporary history that the peace treaty between the United States and Japan has not even been drafted, and that no competent official has formally declared the advent of peace (see Raquiza vs. Bardford, 75 Phil., 50), it is obvious that the six-month period has not begun; and Luis F. General has at present and in June, 1946, no demandable duty to make payment to plaintiffs, independently of the moratorium directive.

On the question of validity of the attachment, "the general rule is that, unless the statute expressly so provides, the remedy by attachment is not available in respect to a demand which is not due and payable, and if an attachment is issued upon such a demand without statutory authority it is void." (7 C.J.S., p. 204.)

It must be observed that under our rules governing the matter the person seeking a preliminary attachment must show that "a sufficient cause of action exists" and that the amount due him is as much as the sum for which the order of attachment is granted" (sec. 3, Rule 59). Inasmuch as the commitment of Luis F. General has not as yet become demandable, there existed no cause of action against him, and the complaint should have been dismissed and the attachment lifted. (Orbeta vs. Sotto, 58 Phil., 505.)

And although it is the general principle that certiorari is not available to correct judicial errors that could be straightened out in an appeal, we have adopted the course that where an attachment has been wrongly levied the writ may be applied for, because the remedy by appeal is either unavailable or inadequate. (Leung Ben vs.O'Brien, 38 Phil., 182; Director of Commerce and Industry vs. Concepcion, 43 Phil., 384; Orbeta vs. Sotto, supra.)

Wherefore, the writ of attachment is quashed and the complaint is dismissed. Costs for petitioner. So ordered.


G. R. No. L-45948 September 10, 1985 MERCEDES GRUENBERG and ALBERT GRUENBERG, petitioners, vs. HONORABLE COURT OF APPEALS, HONORABLE LINO L. AOVER and ELDA R. FLORES, respondents.

GUTIERREZ, JR., J.:

This is a petition to review the decision of the Court of Appeals, now Intermediate Appellate Court, which affirmed the order for the issuance of a writ of preliminary attachment, and other related orders of the then Court of First Instance of Rizal in Civil Case No. Q-18444.

The antecedent facts are summarized by the appellate court as follows:

Petitioners are the defendants and private respondent is the plaintiff in Civil Case No. Q-18444, Court of First Instance of Rizal, Branch XVII-B-Quezon City, for annulment of sale, recovery of ownership and possession of the house and lot situated at No. 24 Scout Limbaga, Diliman, Quezon City, the same, allegedly, having been sold in fraud of creditors.

Private respondent filed the complaint in Civil Case No. Q18444, in her capacity as the administratrix of the intestate estate of the late William Gruenberg.

It is alleged in the complaint in Civil Case No. Q-18444 that the house and lot in question, which were sold to defendant Albert Gruenberg (one of the petitioners), form part of the conjugal partnership of the Gruenberg spouses, which must answer for the obligations that deceased William Gruenberg might have incurred during his lifetime in his capacity as manager and administrator of the conjugal partnership; and that the sale of the house and lot before the death of William Gruenberg, when at that time two creditors had already filed suits against him for collection of unpaid obligations, and the latter had unpaid obligation to plaintiff Elda R, Flores (private respondent) in the amount of P13,000.00, exclusive of interest and collection charges, patently and clearly can no longer be paid or liquidated.

On March 1, 1974, petitioners filed their answer to the complaint.


Under date of February 7, 1976, private respondent filed a 'Motion for Issuance of Writ of Preliminary Attachment' against the properties of petitioners, alleging, among others, that the latter are indebted to her in the principal amount of P13,000.00, which, according to her, she seeks to recover in Civil Case No. Q-18444.

On March 1, 1976, petitioners filed their opposition to the motion for the issuance of writ of preliminary attachment, alleging among others, that Civil Case No. Q-18444 is an action for annulment of sale and recovery of the house and lot mentioned therein, and not for recovery of sum of money. It is contended that a writ of preliminary attachment is not the proper remedy for the protection of the rights of the estate. In the same opposition, petitioners refuted the allegations of private respondent in her motion that the complaint in Civil Case No. Q-18444 is one for collection of a sum of money allegedly contracted fraudulently by petitioners.

On March 26, 1976, respondent Judge issued an order, granting the motion of private respondent and issuing a writ of preliminary attachment against the properties of petitioners, respondent Judge stating that no opposition had been filed to the motion.

In the latter part of July, 1976, respondent Sheriff and/or his deputies served on petitioners and the managers of the Hollywood Theater, Palace Theater and Illusion Theatre a writ of preliminary attachment and notice of garnishment against petitioners and personally in favor of respondent Flores.

It is alleged that the order of respondent Judge was not received by petitioners' new counsel but upon being informed by petitioners of the writ of preliminary attachment and notice of garnishment, petitioners'new counsel promptly went to the court of respondent Judge and then and there he discovered that petitioners' opposition to the motion was not attached to the record, because the same was forwarded to Branch XVIII to which Civil Case No. Q-18444 was originally assigned,

On July 30, 1976, petitioners filed (a) a motion for reconsideration of the order granting the motion for the issuance of a writ of preliminary attachment, and (b) a motion to recall the writ of preliminary attachment and notice of garnishment, on the ground that it is not true that petitioners did not oppose the motion of private respondent, and that there is no valid basis to grant the motion.


On August 16, 1976, respondent Judge issued an order, denying the motions of petitioners.

On October 28, 1976, respondent Judge issued an order, requiring petitioners to appear before his court to explain why they should not be punished for contempt for denying or disobeying the lawful processes of the court.

The issuance of the "show cause" order prompted the petitioners to file a petition for certiorari with writ of preliminary injunction in the Court of Appeals. The petition was dismissed. Hence, the instant petition

The issues raised to us are embodied in the petitioners' assignments of errors as follows:

I. THE COURT OF APPEALS ERRED IN OVERLOOKING THE FACT THAT WRIT OF PRELIMINARY ATTACHMENT COULD ONLY BE GRANTED TO SECURE THE SATISFACTION OF A JUDGMENT IN A CASE IN WHICH SAID WRIT IS PRAYED FOR;

II. THE COURT ERRED IN SUSTAINING THE ISSUANCE OF THE WRIT OF PRELIMINARY ATTACHMENT FOR THE PERSONAL BENEFIT OF PRIVATE RESPONDENT IN CIVIL CASE NO. Q-18444, NOTWITHSTANDING THE FACT THAT SAID RESPONDENT INSTITUTED SAID ACTION NOT IN HER PERSONAL CAPACITY, BUT AS ADMINISTRATRIX OF THE ESTATE OF THE LATE WILLIAM GRUENBERG, SR.;

III. THE COURT OF APPEALS ERRED IN RULING THAT PETITIONERS CAN BE CITED FOR CONTEMPT FOR THE ALLEGED FAILURE TO COMPLY WITH THE NOTICE OF GARNISHMENT ADDRESSED TO THIRD PARTIES.

The issues are interrelated and may be discussed together. They all focus on the proprietary of the writ of attachment and garnishment against the petitioners' properties issued by the trial court and affirmed by the appellate court.

In her affidavit supporting the motion for a writ of preliminary attachment, the private respondent stated that her case "... is one of the situations covered by Section 1 (d), Rule 57 of the Rules of Court whereby a writ of preliminary attachment may issue." Section 1 (d), Rule 57 provides:

Grounds upon which attachment may issue.A plaintiff or any proper party may, at the commencement of the action or at any time thereafter, have


the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases:

xxx xxx xxx

(d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in concealing or disposing of the property for the taking, detention or conversion of which the action is brought.

xxx xxx xxx

There are various reasons why this petition should prosper.

Private respondent Elda R. Flores, as a claimant for P13,000.00 against the estate of William Gruenberg, Sr., was appointed administratrix of the estate of the deceased. In her capacity as administratrix, she filed Civil Case No. Q-18444 against the petitioners. This main case was for the annulment of a deed of sale executed by the late William Gruenberg, Sr., in favor of Albert Gruenberg and for the recovery of possession and ownership of the house and lot involved in that sale.

The motion for a writ of preliminary attachment filed by Flores, however, states:

1. Defendants are indebted to plaintiff in the amount of P13,000.00 exclusive of accrued interest and collection charges, which plaintiff seeks to recover in the instant action; and

2. Defendants are guilty of fraud in contracting the debt or incurring the obligation due plaintiff in that they conspired and confederated with each other as mother End son to defraud other creditors one of whom is plaintiff, by simulating

provisional remedies

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