G.R. No.

L-45720 December 29, 1937

VENTURA GUZMAN, petitioner,
vs.
ALFREDO CATOLICO and SIMEON RAMOS, Judge of First Instance of Isabela, respondents.
Facts: 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"
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.

Issue: whether or not the requisites prescribed by law for the issuance of a writ of preliminary attachment
have been complied with.

Held: No. 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."
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.
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.

G.R. No. L-46009 May 14, 1979

RICARDO T. SALAS and MARIA SALAS, petitioners,
vs.
HON. MIDPANTAO L. ADIL, as Judge of Branch II, Court of First Instance of Iloilo, ROSITA BEDRO
and BENITA YU, respondents.
Facts: On September 10, 1976, respondents Rosita Bedro and Benita Yu filed the afore-mentioned civil
action with the Court of First Instance of Iloilo against herein petitioners Ricardo T. Salas and Maria Salas,
the Philippine Commercial & Industrial Bank, in its capacity as Administrator of the Testate Estate of the
deceased Charles Newton Hodges, and Avelina A. Magno, in her capacity as Administratrix of the Testate
Estate of the deceased Linnie Jane Hodge to annul the deed of sale of Lot No. 5 executed by
administrators of the Hodges Estate in favor of the Spouses Ricardo T. Salas and Maria Salas and for
damages. The action for annulment was predicated upon the averment that Lot No. 5, being a subdivision
road, is intend for public use and cannot be sold or disposed of by the Hodges Estate. The claim for
damages was based on the assertion that after defendant spouses purchased Lots Nos. 2 and 3, they
also purchased Lot No. 5 and thereafter "erected wooden posts, laid and plastered at the door of the
house on Lot No. 3, with braces of hardwood, lumber and plywood nailed to the post", thereby preventing
Rosita Bedro and Benita Yu from using the road on the afore-mentioned lot, Lot No. 5, and that as a result
of such obstruction, private respondents Rosita Bedro and Benita Yu sustained actual damages due to
the stoppage in the construction of their commercial buildings on Lot No. 3.
In their answer to the complaint, the Salas spouses, after specifically denying the material allegations in
the complaint, stated that Lot No. 5 had been registered in the name of the C. N. Hodges as their
exclusive private property and was never subjected to any servitude or easement of right of way in favor
of any person; that any occupants of Lots Nos. 2 and 3 have direct access to Bonifacio Drive, a National
Highway, hence, Lot No. 5 is neither needed nor required for the egress or ingress of the occupants
thereof.
Private respondents filed a Motion for Attachment, alleging, among others, that the case was "for
annulment of a deed of sale and recovery of damages" and that the defendants have removed or
disposed of their properties or are about to do so with intent to defraud their creditors especially the
plaintiffs in this case.
Respondent Judge issued ex-parte a Writ of Attachment "against the properties of the defendants

Issue: WON respondent Judge gravely abused his discretion in issuing the said Writ of Attachment

Held: In certiorari proceedings, the cardinal rule is that the court must be given the opportunity to correct
itself, Thus, for the special civil action of certiorari to prosper, there must be no appeal nor any plain,
speedy and adequate remedy in the ordinary course of law. Petitioners, therefore, must exhaust all
available remedies in the lower court before filing a petition for certiorari, otherwise the petition shall be
held to be premature.

In the instant case, it appears that petitioners have adequate remedy under the law. They could have filed
an application with the court a quo for the discharge of the attachment for improper or irregular issuance
under section 13, Rule 57, of the Revised Rules of Court.
Considering that petitioners have not availed of this remedy, the instant petition is premature.
We deem it necessary, however, for the guidance of respondent Court and of the parties, to stress herein
the nature of attachment as an extraordinary provisional remedy.
A preliminary attachment is a rigorous remedy, which exposes the debtor to humiliation and annoyance,
such 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 so issued shall be null and void . 1
And in Garcia v. Reyes, 3 considering the allegation that the debtors were removing or disposing of some
of their properties with intent to defraud their creditors, 'this Court said that "(a)ll in all due process would
seem to require that both parties further ventilate their respective contentions in a hearing that could
indeed reveal the truth. Fairness would be served thereby, the demand of reason satisfied."
Considering the gravity of the allegation that herein petitioners have removed or disposed of their
properties or are about to do so with intent to defraud their creditors, and further considering that the
affidavit in support of the pre attachment merely states such ground in general terms, without specific
allegations of lances to show the reason why plaintiffs believe that defendants are disposing of their
properties in fraud of creditors, it was incumbent upon respondent Judge to give notice to petitioners and
to allow wherein evidence is them to present their position at a to be received. Moreover, it appears from
the records that private respondents are claiming unliquidated damages, including moral damages, from
petitioners. The authorities agree that the writ of attachment is not available 'm a suit for damages where
the amount claimed is contingent or unliquidated.

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

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., respondent.
Facts: The instant petition stemmed from Civil Case No. 7329 of the Court of First Instance of Davao
(Branch 1) in which a writ of preliminary attachment was issued ex-parte by the Court on the strength of
an affidavit of merit attached to the verified complaint filed by petitioner herein, Aboitiz & Co., Inc., on
November 2, 1971, as plaintiff in said case, for the collection of money in the sum of P 155,739.41, which
defendant therein, the respondent in the instant case, Cotabato Bus Co., owed the said petitioner.
By virtue of the writ of preliminary attachment, the provincial sheriff attached personal properties of the
defendant bus company consisting of some buses, machinery and equipment. The ground for the
issuance of the writ is, as alleged in the complaint and the affidavit of merit executed by the Assistant
Manager of petitioner, that the defendant "has removed or disposed of its properties or assets, or is about
to do so, with intent to defraud its creditors."
Respondent company filed in the lower court an "Urgent Motion to Dissolve or Quash Writ of Attachment"
to which was attached an affidavit executed by its Assistant Manager, Baldovino Lagbao, alleging among
other things that "the Cotabato Bus Company has not been selling or disposing of its properties, neither
does it intend to do so, much less to defraud its creditors; that also the Cotabato Bus Company, Inc. has
been acquiring and buying more assets".
The lower court denied the motion stating in its Order that "the testimony of Baldovino Lagbao, witness for
the defendant, corroborates the facts in the plaintiff's affidavit instead of disproving or showing them to be
untrue."
A motion for reconsideration was filed by the defendant bus company but the lower court denied it.
Court of Appeals declared "null and void the order/writ of attachment dated November 3, 1971 and the
orders of December 2, 1971, as well as that of December 11, 1971, ordered the release of the attached
properties, and made the restraining order originally issued permanent.

Issue: whether the writ of attachment was properly issued upon a showing that defendant is on the verge
of insolvency and may no longer satisfy its just debts without issuing the writ.

Held: NO. Petitioner, however, disclaims any intention of advancing the theory that insolvency is a ground
for the issuance of a writ of attachment , 3 and insists that its evidence -is intended to prove his assertion
that respondent company has disposed, or is about to dispose, of its properties, in fraud of its creditors.
Aside from the reference petitioner had made to respondent company's "nil" bank account, as if to show
removal of company's funds, petitioner also cited the alleged non-payment of its other creditors, including

secured creditors like the DBP to which all its buses have been mortgaged, despite its daily income
averaging P12,000.00, and the rescue and removal of five attached buses.
It is an undisputed fact that, as averred by petitioner itself, the several buses attached are nearly junks.
However, upon permission by the sheriff, five of them were repaired, but they were substituted with five
buses which were also in the same condition as the five repaired ones before the repair. This cannot be
the removal intended as ground for the issuance of a writ of attachment under section 1 (e), Rule 57, of
the Rules of Court. The repair of the five buses was evidently motivated by a desire to serve the interest
of the riding public, clearly not to defraud its creditors, as there is no showing that they were not put on
the run after their repairs, as was the obvious purpose of their substitution to be placed in running
condition.
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.