PROVREM – Atty Tiu (Rule 57, Section 2 FT)
G.R. No. 84034 December 22, 1988
ALBERTO SIEVERT, petitioner,
vs.
COURT OF APPEALS, HON. JUDGE ARTEMON D. LUNA and AURELIO
CAMPOSANO, respondents.
On 18 May 1988 petitioner Alberto Sievert a citizen and resident of the Philippines
received by mail a Petition for Issuance of a Preliminary Attachment filed with the
Regional Trial Court of Manila Branch 32 in Civil Case No. 88-44346. Petitioner had
not previously received any summons and any copy of a complaint against him in
Civil Case No. 88-44346.
On the day set for hearing of the Petition for a Preliminary Writ of Attachment,
petitioner's counsel went before the trial court and entered a special appearance for the
limited purpose of objecting to the jurisdiction of the court. He simultaneously filed a
written objection to the jurisdiction of the trial court to hear or act upon the Petition
for Issuance of a Preliminary Writ of Attachment. In this written objection, petitioner
prayed for denial of that Petition for lack of jurisdiction over the person of the
petitioner (defendant therein) upon the ground that since no summons had been served
upon him in the main case, no jurisdiction over the person of the petitioner had been
acquired by the trial court.
The trial court denied the petitioner's objection and issued in open court an order
which, in relevant part, read as follows:
Under Section 1, Rule 57, Rules of Court, it is clear that 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 the security for the satisfaction of
any judgment ..." This rule would overrule the contention
that this Court has no jurisdiction to act on the application,
although if counsel for defendant so desire, she is given five
(5) days from today within which to submit her further
position why the writ should not be issued, upon the receipt
of which or expiration of the period, the pending incident
shall be considered submitted for resolution. (Underscoring
in the original) 1
Thereupon, on the same day, petitioner filed a Petition for certiorari with the Court of
Appeals. On 13 July 1988, the respondent appellate court rendered a decision, notable
principally for its brevity, dismissing the Petition. The relevant portion of the Court of
Appeals' decision is quoted below:
The grounds raised in this petition state that the court a
quo had not acquired jurisdiction over defendant (now
petitioner) since no summons had been served on him, and
that respondent Judge had committed a grave abuse of
discretion in issuing the questioned order without
jurisdiction.
In short, the issue presented to us is whether respondent
Judge may issue a writ of preliminary attachment against
petitioner before summons is served on the latter.
We rule for respondent Judge.
Under Sec. 1, Rule 57, it is clear that, at the commencement
of the action, a party may have the property of the adverse
party attached as security. The resolution of this issue
depends, therefore, on what is meant by "Commencement of
the action." Moran, citing American jurisprudence on this
point, stated thus: "Commencement of action. — Action is
commenced by filing of the complaint, even though
summons is not issued until a later date." (Comment on the
Rules of Court, Vol. I, p. 150, 1979). Thus, a writ of
preliminary attachment may issue upon filing of the
complaint even before issuance of the summons.
WHEREFORE, for lack of merit, the petition is hereby
denied and, accordingly, dismissed. (Emphasis supplied) 2
The petitioner is now before this Court on a Petition for Review on Certiorari,
assailing the above-quoted decision of the Court of Appeals. The petitioner assigns
two (2) errors:
1. The proceedings taken and the order issued on plaintiffs
petition for attachment prior to the service of summons on
the defendant were contrary to law and jurisprudence and
violated the defendant's right to due process.
2. The Court of Appeals committed a grave abuse of
discretion amounting to lack of jurisdiction in ruling that a
writ of preliminary attachment may issue upon filing of the
complaint even prior to issuance of the summons. 3
The two (2) assignments of error relate to the single issue which we perceive to be at
stake here, that is, whether a court which has not acquired jurisdiction over the person
of the defendant in the main case, may bind such defendant or his property by issuing
a writ of preliminary attachment.
Both the trial court and the Court of Appeals held that the defendant may be bound by
a writ of preliminary attachment even before summons together with a copy of the
complaint in the main case has been validly served upon him.
We are unable to agree with the respondent courts.
There is no question that a writ of preliminary attachment may be applied for a
plaintiff "at the commencement of the action or at any time thereafter" in the cases
enumerated in Section 1 of Rule 57 of the Revised Rules of Court. The issue posed in
this case, however, is not to be resolved by determining when an action may be
regarded as having been commenced, a point in time which, in any case,
is not necessarily fixed and Identical regardless of the specific purpose for which the
deter. nation is to be made. The critical time which must be Identified is, rather, when
the trial court acquires authority under law to act coercively against the defendant or
his property in a proceeding in attachment. We believe and so hold that critical time is
the time of the vesting of jurisdiction in the court over the person of the defendant in
the main case.
Attachment is an ancillary remedy. It is not sought for its own sake but rather to enable the attachin
to be granted in the main or principal action . 4 A court which has not acquired jurisdiction over th
whether in the main case or in any ancillary proceeding such as attachment proceedings. The servic
the prior or simultaneous service of summons and a copy of the complaint in the main case — and
course confer jurisdiction upon the issuing court over the person of the defendant.
Ordinarily, the prayer in a petition for a writ of preliminary attachment is embodied or
incorporated in the main complaint itself as one of the forms of relief sought in such
complaint. Thus, valid service of summons and a copy of the complaint will in such
case vest jurisdiction in the court over the defendant both for purposes of the main
case and for purposes of the ancillary remedy of attachment. In such case, notice of the
main case is at the same time notice of the auxiliary proceeding in attachment. Where,
however, the petition for a writ of preliminary attachment is embodied in a discrete
pleading, such petition must be served either simultaneously with service of
summons and a copy of the main complaint, or after jurisdiction over the defendant
has already been acquired by such service of summons. Notice of the separate
attachment petition is not notice of the main action. Put a little differently, jurisdiction
whether ratione personae or ratione materiae in an attachment proceeding is ancillary
to jurisdiction ratione personae or ratione materiae in the main action against the
defendant. If a court has no jurisdiction over the subject matter or over the person of
the defendant in the principal action, it simply has no jurisdiction to issue a writ of
preliminary attachment against the defendant or his property.
It is basic that the requirements of the Rules of Court for issuance of preliminary
attachment must be strictly and faithfully complied with in view of the nature of this
provisional remedy. In Salas v. Adil, 5 this Court described preliminary attachment as
—
a rigorous remedy which exposes the debtor to humiliation
and annoyance, such [that] it should not be abused as to
cause unnecessary prejudice. It is, therefore; the duty of the
court, before issuing the writ, to ensure that all the requisites
of the law have been complied with; otherwise the judge acts
in excess of his jurisdiction and the writ so issued shall be
null and void. (Emphasis supplied ) 6
The above words apply with greater force in respect of that most fundamental of
requisites, the jurisdiction of the court issuing attachment over the person of the
defendant.
In the case at bar, the want of jurisdiction of the trial court to proceed in the main case
against the defendant is quite clear. It is not disputed that neither service of summons
with a copy of the complaint nor voluntary appearance of petitioner Sievert was had in
this case. Yet, the trial court proceeded to hear the petition for issuance of the writ.
This is reversible error and must be corrected on certiorari.
WHEREFORE, the Petition for Review on certiorari is GRANTED due course and the
Order of the trial court dated 20 May 1988 and the Decision of the Court of Appeals
dated 13 July 1988 are hereby SET ASIDE and ANNULLED. No pronouncement as
to costs.
SO ORDERED.
PROVREM – Atty Tiu (Rule 57, Section 2 FT)
G.R. No. 93262 December 29, 1991
DAVAO LIGHT & POWER CO., INC., petitioner,
vs.
THE COURT OF APPEALS, QUEENSLAND HOTEL or MOTEL or
QUEENSLAND TOURIST INN, and TEODORICO ADARNA, respondents.
Subject of the appellate proceedings at bar is the decision of the Court of Appeals in
CA-G.R. Sp. No. 1967 entitled "Queensland Hotel, Inc., etc. and Adarna v. Davao
Light & Power Co., Inc.," promulgated on May 4, 1990. 1 That decision nullified and
set aside the writ of preliminary attachment issued by the Regional Trial Court of
Davao City 2 in Civil Case No. 19513-89 on application of the plaintiff (Davao Light
& Power Co.), before the service of summons on the defendants (herein respondents
Queensland Co., Inc. and Adarna).
Following is the chronology of the undisputed material facts culled from the Appellate
Tribunal's judgment of May 4, 1990.
1. On May 2, 1989 Davao Light & Power Co., Inc. (hereafter, simply Davao Light)
filed a verified complaint for recovery of a sum of money and damages against
Queensland Hotel, etc. and Teodorico Adarna (docketed as Civil Case No. 19513-89).
The complaint contained an ex parte application for a writ of preliminary attachment.
2. On May 3, 1989 Judge Nartatez, to whose branch the case was assigned by raffle,
issued an Order granting the ex parte application and fixing the attachment bond at
P4,600,513.37.
3. On May 11, 1989 the attachment bond having been submitted by Davao Light, the
writ of attachment issued.
4. On May 12, 1989, the summons and a copy of the complaint, as well as the writ of
attachment and a copy of the attachment bond, were served on defendants Queensland
and Adarna; and pursuant to the writ, the sheriff seized properties belonging to the
latter.
5. On September 6, 1989, defendants Queensland and Adarna filed a motion to
discharge the attachment for lack of jurisdiction to issue the same because at the time
the order of attachment was promulgated (May 3, 1989) and the attachment writ
issued (May 11, 1989), the Trial Court had not yet acquired jurisdiction over the cause
and over the persons of the defendants.
6. On September 14, 1989, Davao Light filed an opposition to the motion to discharge
attachment.
7. On September 19, 1989, the Trial Court issued an Order denying the motion to
discharge.
This Order of September 19, 1989 was successfully challenged by Queensland and
Adarna in a special civil action of certiorari instituted by them in the Court of
Appeals. The Order was, as aforestated, annulled by the Court of Appeals in its
Decision of May 4, 1990. The Appellate Court's decision closed with the following
disposition:
. . . the Orders dated May 3, 1989 granting the issuance of a
writ of preliminary attachment, dated September 19, 1989
denying the motion to discharge attachment; dated
November 7, 1989 denying petitioner's motion for
reconsideration; as well as all other orders emanating
therefrom, specially the Writ of Attachment dated May 11,
1989 and Notice of Levy on Preliminary Attachment dated
May 11, 1989, are hereby declared null and void and the
attachment hereby ordered DISCHARGED.
The Appellate Tribunal declared that —
. . . While it is true that a prayer for the issuance of a writ of
preliminary attachment may be included m the complaint, as
is usually done, it is likewise true that the Court does not
acquire jurisdiction over the person of the defendant until he
is duly summoned or voluntarily appears, and adding the
phrase that it be issued "ex parte" does not confer said
jurisdiction before actual summons had been made, nor
retroact jurisdiction upon summons being made. . . .
It went on to say, citing Sievert v. Court of Appeals, 3 that "in a
proceedings in attachment," the "critical time which must be identified is
. . . when the trial court acquires authority under law to act coercively
against the defendant or his property . . .;" and that "the critical time is the
of the vesting of jurisdiction in the court over the person of the defendant
in the main case."
Reversal of this Decision of the Court of Appeals of May 4, 1990 is what Davao Light
seeks in the present appellate proceedings.
The question is whether or not a writ of preliminary attachment may issue ex
parte against a defendant before acquisition of jurisdiction of the latter's person by
service of summons or his voluntary submission to the Court's authority.
The Court rules that the question must be answered in the affirmative and that
consequently, the petition for review will have to be granted.
It is incorrect to theorize that after an action or proceeding has been commenced and
jurisdiction over the person of the plaintiff has been vested in the court, but before the
acquisition of jurisdiction over the person of the defendant (either by service of
summons or his voluntary submission to the court's authority), nothing can be validly
done by the plaintiff or the court. It is wrong to assume that the validity of acts done
during this period should be defendant on, or held in suspension until, the actual
obtention of jurisdiction over the defendant's person. The obtention by the court of
jurisdiction over the person of the defendant is one thing; quite another is the
acquisition of jurisdiction over the person of the plaintiff or over the subject-matter or
nature of the action, or the res or object hereof.
An action or proceeding is commenced by the filing of the complaint or other
initiatory pleading. 4 By that act, the jurisdiction of the court over the subject matter or
nature of the action or proceeding is invoked or called into activity; 5 and it is thus that
the court acquires jurisdiction over said subject matter or nature of the action. 6 And it
is by that self-same act of the plaintiff (or petitioner) of filing the complaint (or other
appropriate pleading) — by which he signifies his submission to the court's power and
authority — that jurisdiction is acquired by the court over his person. 7 On the other
hand, jurisdiction over the person of the defendant is obtained, as above stated, by the
service of summons or other coercive process upon him or by his voluntary
submission to the authority of the court. 8
The events that follow the filing of the complaint as a matter of routine are well
known. After the complaint is filed, summons issues to the defendant, the summons is
then transmitted to the sheriff, and finally, service of the summons is effected on the
defendant in any of the ways authorized by the Rules of Court. There is thus ordinarily
some appreciable interval of time between the day of the filing of the complaint and
the day of service of summons of the defendant. During this period, different acts may
be done by the plaintiff or by the Court, which are unquestionable validity and
propriety. Among these, for example, are the appointment of a guardian ad litem, 9 the
grant of authority to the plaintiff to prosecute the suit as a pauper litigant, 10 the
amendment of the complaint by the plaintiff as a matter of right without leave of
court, 11 authorization by the Court of service of summons by publication, 12 the
dismissal of the action by the plaintiff on mere notice. 13
This, too, is true with regard to the provisional remedies of preliminary attachment,
preliminary injunction, receivership or replevin. 14 They may be validly and properly
applied for and granted even before the defendant is summoned or is heard from.
A preliminary attachment may be defined, paraphrasing the Rules of Court, as the
provisional remedy in virtue of which a plaintiff or other party may, at the
commencement of the action or at any time thereafter, have the property of the adverse
party taken into the custody of the court as security for the satisfaction of any
judgment that may be recovered. 15 It is a remedy which is purely statutory in respect
of which the law requires a strict construction of the provisions granting it. 16 Withal
no principle, statutory or jurisprudential, prohibits its issuance by any court before
acquisition of jurisdiction over the person of the defendant.
Rule 57 in fact speaks of the grant of the remedy "at the commencement of the action
or at any time thereafter." 17 The phase, "at the commencement of the action,"
obviously refers to the date of the filing of the complaint — which, as above pointed
out, is the date that marks "the commencement of the action;" 18 and the reference
plainly is to a time before summons is served on the defendant, or even before
summons issues. What the rule is saying quite clearly is that after an action is properly
commenced — by the filing of the complaint and the payment of all requisite docket
and other fees — the plaintiff may apply for and obtain a writ of preliminary
attachment upon fulfillment of the pertinent requisites laid down by law, and that he
may do so at any time, either before or after service of summons on the defendant.
And this indeed, has been the immemorial practice sanctioned by the courts: for the
plaintiff or other proper party to incorporate the application for attachment in the
complaint or other appropriate pleading (counter-claim, cross-claim, third-party claim)
and for the Trial Court to issue the writ ex-parte at the commencement of the action if
it finds the application otherwise sufficient in form and substance.
In Toledo v. Burgos, 19 this Court ruled that a hearing on a motion or application for
preliminary attachment is not generally necessary unless otherwise directed by the
Trial Court in its discretion. 20 And in Filinvest Credit Corporation v. Relova, 21 the
Court declared that "(n)othing in the Rules of Court makes notice and hearing
indispensable and mandatory requisites for the issuance of a writ of attachment." The
only pre-requisite is that the Court be satisfied, upon consideration of "the affidavit of
the applicant or of some other person who personally knows the facts, that a sufficient
cause of action exists, that the case is one of those mentioned in Section 1 . . . (Rule
57), that there is no other sufficient security for the claim sought to be enforced by the
action, and that the amount due to the applicant, or the value of the property the
possession of which he is entitled to recover, is as much as the sum for which the
order (of attachment) is granted above all legal counterclaims." 22 If the court be so
satisfied, the "order of attachment shall be granted," 23 and the writ shall issue upon
PROVREM – Atty Tiu (Rule 57, Section 2 FT)
the applicant's posting of "a bond executed to the adverse party in an amount to be
fixed by the judge, not exceeding the plaintiffs claim, conditioned that the latter will
pay all the costs which may be adjudged to the adverse party and all damages which
he may sustain by reason of the attachment, if the court shall finally adjudge that the
applicant was not entitled thereto." 24
In Mindanao Savings & Loan Association, Inc. v. Court of Appeals, decided on April
18, 1989, 25 this Court had occasion to emphasize the postulate that no hearing is
required on an application for preliminary attachment, with notice to the defendant, for
the reason that this "would defeat the objective of the remedy . . . (since the) time
which such a hearing would take, could be enough to enable the defendant to abscond
or dispose of his property before a writ of attachment issues." As observed by a former
member of this Court, 26 such a procedure would warn absconding debtors-defendants
of the commencement of the suit against them and the probable seizure of their
properties, and thus give them the advantage of time to hide their assets, leaving the
creditor-plaintiff holding the proverbial empty bag; it would place the creditor-
applicant in danger of losing any security for a favorable judgment and thus give him
only an illusory victory.
Withal, ample modes of recourse against a preliminary attachment are secured by law
to the defendant. The relative ease with which a preliminary attachment may be
obtained is matched and paralleled by the relative facility with which the attachment
may legitimately be prevented or frustrated. These modes of recourse against
preliminary attachments granted by Rule 57 were discussed at some length by the
separate opinion in Mindanao Savings & Loans Asso. Inc. v. CA., supra.
That separate opinion stressed that there are two (2) ways of discharging an
attachment: first, by the posting of a counterbond; and second, by a showing of its
improper or irregular issuance.
1.0. The submission of a counterbond is an efficacious mode of lifting an attachment
already enforced against property, or even of preventing its enforcement altogether.
1.1. When property has already been seized under attachment, the attachment may be
discharged upon counterbond in accordance with Section 12 of Rule 57.
Sec. 12. Discharge of attachment upon giving
counterbond. — At any time after an order of attachment has
been granted, the party whose property has been attached or
the person appearing in his behalf, may, upon reasonable
notice to the applicant, apply to the judge who granted the
order, or to the judge of the court in which the action is
pending, for an order discharging the attachment wholly or
in part on the security given . . . in an amount equal to the
value of the property attached as determined by the judge to
secure the payment of any judgment that the attaching
creditor may recover in the action. . . .
1.2. But even before actual levy on property, seizure under attachment may be
prevented also upon counterbond. The defendant need not wait until his property is
seized before seeking the discharge of the attachment by a counterbond. This is made
possible by Section 5 of Rule 57.
Sec. 5. Manner of attaching property. — The officer
executing the order shall without delay attach, to await
judgment and execution in the action, all the properties of
the party against whom the order is issued in the province,
not exempt from execution, or so much thereof as may be
sufficient to satisfy the applicant's demand, unless the former
makes a deposit with the clerk or judge of the court from
which the order issued, or gives a counter-bond executed to
the applicant, in an amount sufficient to satisfy such demand
besides costs, or in an amount equal to the value of the
property which is about to be attached, to secure payment to
the applicant of any judgment which he may recover in the
action. . . . (Emphasis supplied)
2.0. Aside from the filing of a counterbond, a preliminary attachment may also be
lifted or discharged on the ground that it has been irregularly or improperly issued, in
accordance with Section 13 of Rule 57. Like the first, this second mode of lifting an
attachment may be resorted to even before any property has been levied on. Indeed, it
may be availed of after property has been released from a levy on attachment, as is
made clear by said Section 13, viz.:
Sec. 13. Discharge of attachment for improper or irregular
issuance. — The party whose property has been attached
may also, at any time either BEFORE or AFTER the release
of the attached property, or before any attachment shall
have been actually levied, upon reasonable notice to the
attaching creditor, apply to the judge who granted the order,
or to the judge of the court in which the action is pending,
for an order to discharge the attachment on the ground that
the same was improperly or irregularly issued. If the motion
be made on affidavits on the part of the party whose property
has been attached, but not otherwise, the attaching creditor
may oppose the same by counter-affidavits or other evidence
in addition to that on which the attachment was made. . . .
(Emphasis supplied)
This is so because "(a)s pointed out in Calderon v. I.A.C., 155 SCRA 531 (1987), The
attachment debtor cannot be deemed to have waived any defect in the issuance of the
attachment writ by simply availing himself of one way of discharging the attachment
writ, instead of the other. Moreover, the filing of a counterbond is a speedier way of
discharging the attachment writ maliciously sought out by the attaching creditor
instead of the other way, which, in most instances . . . would require presentation of
evidence in a fullblown trial on the merits, and cannot easily be settled in a pending
incident of the case." 27
It may not be amiss to here reiterate other related principles dealt with in Mindanao
Savings & Loans Asso. Inc. v. C.A., supra., 28 to wit:
(a) When an attachment may not be dissolved by a showing
of its irregular or improper issuance:
. . . (W)hen the preliminary attachment is issued upon a
ground which is at the same time the applicant's cause of
action; e.g., "an action for money or property embezzled or
fraudulently misapplied or converted to his own use by a
public officer, or an officer of a corporation, or an attorney,
factor, broker, agent, or clerk, in the course of his
employment as such, or by any other person in a fiduciary
capacity, or for a willful violation of duty." (Sec. 1 [b], Rule
57), or "an action against a party who has been guilty of
fraud m contracting the debt or incurring the obligation upon
which the action is brought" (Sec. 1 [d], Rule 57), the
defendant is not allowed to file a motion to dissolve the
attachment under Section 13 of Rule 57 by offering to show
the falsity of the factual averments in the plaintiff's
application and affidavits on which the writ was based —
and consequently that the writ based thereon had been
improperly or irregularly issued (SEE Benitez v. I.A.C., 154
SCRA 41) — the reason being that the hearing on such a
motion for dissolution of the writ would be tantamount to a
trial of the merits of the action. In other words, the merits of
the action would be ventilated at a mere hearing of a motion,
instead of at the regular trial. Therefore, when the writ of
attachment is of this nature, the only way it can be dissolved
is by a counterbond (G.B. Inc. v. Sanchez, 98 Phil. 886).
(b) Effect of the dissolution of a preliminary attachment on the plaintiffs attachment
bond:
. . . The dissolution of the preliminary attachment upon
security given, or a showing of its irregular or improper
issuance, does not of course operate to discharge the sureties
on plaintiff's own attachment bond. The reason is simple.
That bond is "executed to the adverse party, . . . conditioned
that the . . . (applicant) will pay all the costs which may be
adjudged to the adverse party and all damages which he may
sustain by reason of the attachment, if the court shall finally
adjudge that the applicant was not entitled thereto" (SEC. 4,
Rule 57). Hence, until that determination is made, as to the
applicant's entitlement to the attachment, his bond must
stand and cannot be with-drawn.
With respect to the other provisional remedies, i.e., preliminary injunction (Rule 58),
receivership (Rule 59), replevin or delivery of personal property (Rule 60), the rule is
the same: they may also issue ex parte. 29
It goes without saying that whatever be the acts done by the Court prior to the
acquisition of jurisdiction over the person of defendant, as above indicated — issuance
of summons, order of attachment and writ of attachment (and/or appointments of
guardian ad litem, or grant of authority to the plaintiff to prosecute the suit as a pauper
litigant, or amendment of the complaint by the plaintiff as a matter of right without
leave of court 30 — and however valid and proper they might otherwise be, these do
not and cannot bind and affect the defendant until and unless jurisdiction over his
person is eventually obtained by the court, either by service on him of summons or
other coercive process or his voluntary submission to the court's authority. Hence,
when the sheriff or other proper officer commences implementation of the writ of
attachment, it is essential that he serve on the defendant not only a copy of the
applicant's affidavit and attachment bond, and of the order of attachment, as explicity
required by Section 5 of Rule 57, but also the summons addressed to said defendant as
well as a copy of the complaint and order for appointment of guardian ad litem, if any,
as also explicity directed by Section 3, Rule 14 of the Rules of Court. Service of all
such documents is indispensable not only for the acquisition of jurisdiction over the
person of the defendant, but also upon considerations of fairness, to apprise the
defendant of the complaint against him, of the issuance of a writ of preliminary
attachment and the grounds therefor and thus accord him the opportunity to prevent
attachment of his property by the posting of a counterbond in an amount equal to the
plaintiff's claim in the complaint pursuant to Section 5 (or Section 12), Rule 57, or
dissolving it by causing dismissal of the complaint itself on any of the grounds set
forth in Rule 16, or demonstrating the insufficiency of the applicant's affidavit or bond
in accordance with Section 13, Rule 57.
PROVREM – Atty Tiu (Rule 57, Section 2 FT)

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

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

For the guidance of all concerned, the Court reiterates and reaffirms the proposition
that writs of attachment may properly issue ex parte provided that the Court is
satisfied that the relevant requisites therefor have been fulfilled by the applicant,
although it may, in its discretion, require prior hearing on the application with notice
to the defendant; but that levy on property pursuant to the writ thus issued may not be
validly effected unless preceded, or contemporaneously accompanied, by service on
the defendant of summons, a copy of the complaint (and of the appointment of
guardian ad litem, if any), the application for attachment (if not incorporated in but
submitted separately from the complaint), the order of attachment, and the plaintiff's
attachment bond.

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

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

SO ORDERED.
PROVREM – Atty Tiu (Rule 57, Section 2 FT)
G.R. No. 102448 August 5, 1992
RICARDO CUARTERO, petitioner,
vs.
COURT OF APPEALS, ROBERTO EVANGELISTA and FELICIA
EVANGELISTA, respondents.
This is a petition for review on certiorari seeking to annul the decision of the Court of
Appeals promulgated on June 27, 1991 as well as the subsequent resolution dated
October 22, 1991 denying the motion for reconsideration in CA-G.R. SP No. 23199
entitled "Spouses Roberto and Felicia Evangelista v. Honorable Cezar C. Peralejo,
Presiding Judge Regional Trial Court of Quezon City, Branch 98, and Ricardo
Cuartero," which nullified the orders of the trial court dated August 24, 1990 and
October 4, 1990 and cancelled the writ of preliminary attachment issued on September
19, 1990.
Following are the series of events giving rise to the present controversy.
On August 20, 1990, petitioner Ricardo Cuartero filed a complaint before the Regional
Trial Court of Quezon City against the private respondents, Evangelista spouses, for a
sum of money plus damages with a prayer for the issuance of a writ of preliminary
attachment. The complaint was docketed as Civil Case No. Q-90-6471.
On August 24, 1990, the lower court issued an order granting ex-parte the petitioner's
prayer for the issuance of a writ of preliminary attachment.
On September 19, 1990, the writ of preliminary attachment was issued pursuant to the
trial court's order dated August 24, 1990. On the same day, the summons for the
spouses Evangelista was likewise prepared.
The following day, that is, on September 20, 1990, a copy of the writ of preliminary
attachment, the order dated August 24, 1990, the summons and the complaint were all
simultaneously served upon the private respondents at their residence. Immediately
thereafter, Deputy Sheriff Ernesto L. Sula levied, attached and pulled out the
properties in compliance with the court's directive to attach all the properties of private
respondents not exempt from execution, or so much thereof as may be sufficient to
satisfy the petitioner's principal claim in the amount of P2,171,794.91.
Subsequently, the spouses Evangelista filed motion to set aside the order dated August
24, 1990 and discharge the writ of preliminary attachment for having been irregularly
and improperly issued. On October 4, 1990, the lower court denied the motion for lack
of merit.
Private respondents, then, filed a special civil action for certiorari with the Court of
Appeals questioning the orders of the lower court dated August 24, 1990 and October
4, 1990 with a prayer for a restraining order or writ of preliminary injunction to enjoin
the judge from taking further proceedings below.
In a Resolution dated October 31, 1990, the Court of Appeals resolved not to grant the
prayer for restraining order or writ of preliminary injunction, there being no clear
showing that the spouses Evangelista were entitled thereto.
On June 27, 1991, the Court of Appeals granted the petition for certiorari and
rendered the questioned decision. The motion for reconsideration filed by herein
petitioner Cuartero was denied for lack of merit in a resolution dated October 22,
1991. Hence, the present recourse to this Court.
The petitioner raises the following assignment of errors:
I The writ of preliminary attachment can be applied for and granted at the
THE COURT OF APPEALS ERRED AND COMMITTED
A GRAVE ABUSE OF DISCRETION, AMOUNTING TO
LACK OF JURISDICTION WHEN IT HELD THAT THE
REGIONAL TRIAL COURT DID NOT ACQUIRE
JURISDICTION OVER RESPONDENT SPOUSES.
II
THE COURT OF APPEALS ERRED AND ACTED WITH
GRAVE ABUSE OF DISCRETION WHEN IT HELD
THAT THE REGIONAL TRIAL COURT COULD NOT
VALIDLY ISSUE THE SUBJECT WRIT OF
PRELIMINARY ATTACHMENT WHICH IS AN
ANCILLARY REMEDY. (Rollo, p. 13)
The Court of Appeals' decision is grounded on its finding that the trial court did not
acquire any jurisdiction over the person of the defendants (private respondents herein).
It declared that:
. . . the want of jurisdiction of the trial court to proceed in the
main case as well as the ancillary remedy of attachment is
quite clear. It is not disputed that neither service of summons
with a copy of the complaint nor voluntary appearance of
petitioners was had in this case before the trial court issued
the assailed order dated August 24, 1990, as well as the writ
of preliminary attachment dated September 19, 1990. This is
reversible error and must be corrected on certiorari. (Rollo,
p. 24)
The appellate tribunal relied on the case of Sievert v. Court of Appeals, 168 SCRA 692
(1988) in arriving at the foregoing conclusion. It stated that:
Valid service of summons and a copy of the complaint vest
jurisdiction in the court over the defendant both for the
purpose of the main case and for purposes of the ancillary
remedy of attachment and a court which has not acquired
jurisdiction over the person of defendant, cannot bind the
defendant whether in the main case or in any ancillary
proceeding such as attachment proceedings (Sievert v. Court
of Appeals, 168 SCRA 692). (Rollo, p. 24)
The private respondents, in their comment, adopted and reiterated the aforementioned
ruling of the Court of Appeals. They added that aside from the want of jurisdiction, no
proper ground also existed for the issuance of the writ of preliminary attachment. They
stress that the fraud in contracting the debt or incurring the obligation upon which the
action is brought which comprises a ground for attachment must have already been
intended at the inception of the contract. According to them, there was no intent to
defraud the petitioner when the postdated checks were issued inasmuch as the latter
was aware that the same were not yet funded and that they were issued only for
purposes of creating an evidence to prove a pre-existing obligation.
Another point which the private respondents raised in their comment is the alleged
violation of their constitutionally guaranteed right to due process when the writ was
issued without notice and hearing.
In the later case of Davao Light and Power Co., Inc. v. Court of Appeals, G.R. No.
93262, November 29, 1991, we had occasion to deal with certain misconceptions
which may have arisen from our Sievert ruling. The question which was resolved in
the Davao Light case is whether or not a writ of preliminary attachment may issue ex-
parte against a defendant before the court acquires jurisdiction over the latter's person
by service of summons or his voluntary submission to the court's authority. The Court
answered in the affirmative. This should have clarified the matter but apparently
another ruling is necessary.
A writ of preliminary attachment is defined as 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 (Adlawan v. Tomol, 184 SCRA 31 [1990] citing Virata
v. Aquino, 53 SCRA 30-31 [1973]).
Under section 3, Rule 57 of the Rules of Court, the only requisites for the issuance of
the writ are the affidavit and bond of the applicant. As has been expressly ruled in BF
Homes, Inc. v. Court of Appeals, 190 SCRA 262 (1990), citing Mindanao Savings and
Loan Association, Inc. v. Court of Appeals, 172 SCRA 480 (1989), no notice to the
adverse party or hearing of the application is required inasmuch as the time which the
hearing will take could be enough to enable the defendant to abscond or dispose of his
property before a writ of attachment issues. In such a case, a hearing would render
nugatory the purpose of this provisional remedy. The ruling remains good law. There
is, thus, no merit in the private respondents' claim of violation of their constitutionally
guaranteed right to due process.
commencement of the action or at any time thereafter (Section 1, Rule 57, Rules of
Court). In Davao Light and Power, Co., Inc. v. Court of Appeals, supra, the phrase "at
the commencement of the action" is interpreted as referring to the date of the filing of
the complaint which is a time before summons is served on the defendant or even
before summons issues. The Court added that —
. . . after an action is properly commenced — by filing of the
complaint and the payment of all requisite docket and other
fees — the plaintiff may apply and obtain a writ of
preliminary attachment upon the fulfillment of the pertinent
requisites laid down by law, and that he may do so at any
time, either before or after service of summons on the
defendant. And this, indeed, has been the immemorial
practice sanctioned by the courts: for the plaintiff or other
proper party to incorporate the application for attachment in
the complaint or other appropriate pleading (counter-claim,
cross-claim, third-party-claim) and for the Trial Court to
issue the writ ex-parte at the commencement of the action if
it finds the application otherwise sufficient in form and
substance.
The Court also pointed out that:
PROVREM – Atty Tiu (Rule 57, Section 2 FT)

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

proceeding has been commenced and jurisdiction over the
person of the plaintiff has been vested in the Court, but
before acquisition of jurisdiction over the person of the
defendant (either by service of summons or his voluntary
submission to the Court's authority), nothing can be validly
done by the plaintiff or the Court. It is wrong to assume that
the validity of acts done during the period should be
dependent on, or held in suspension until, the actual
obtention of jurisdiction over the defendants person. The
obtention by the court of jurisdiction over the person of the
defendant is one thing; quite another is the acquisition of
jurisdiction over the person of the plaintiff or over the
subject matter or nature of the action, or the res or object
thereof.

It is clear from our pronouncements that a writ of preliminary attachment may issue
even before summons is served upon the defendant. However, we have likewise ruled
that the writ cannot bind and affect the defendant. However, we have likewise ruled
that the writ cannot bind and affect the defendant until jurisdiction over his person is
eventually obtained. Therefore, it is required that when the proper officer commences
implementation of the writ of attachment, service of summons should be
simultaneously made.

It must be emphasized that the grant of the provisional remedy of attachment

practically involves three stages: first, the court issues the order granting the
application; second, the writ of attachment issues pursuant to the order granting the
writ; and third, the writ is implemented. For the initial two stages, it is not necessary
that jurisdiction over the person of the defendant should first be obtained. However,
once the implementation commences, it is required that the court must have acquired
jurisdiction over the defendant for without such jurisdiction, the court has no power
and authority to act in any manner against the defendant. Any order issuing from the
Court will not bind the defendant.

In Sievert v. Court of Appeals, supra, cited by the Court of Appeals in its questioned
decision, the writ of attachment issued ex-parte was struck down because when the
writ of attachment was being implemented, no jurisdiction over the person of the
defendant had as yet been obtained. The court had failed to serve the summons to the
defendant.

The circumstances in Sievert are different from those in the case at bar. When the writ
of attachment was served on the spouses Evangelista, the summons and copy of the
complaint were also simultaneously served.

It is appropriate to reiterate this Court's exposition in the Davao Light and Power case
cited earlier, to wit:

. . . writs of attachment may properly issue ex-parte provided

that the Court is satisfied that the relevant requisites
therefore have been fulfilled by the applicant, although it
may, in its discretion, require prior hearing on the
application with notice to the defendant, but that levy on
property pursuant to the writ thus issued may not be validly
effected unless preceded, or contemporaneously
accompanied by service on the defendant of summons, a
copy of the complaint (and of the appointment of
guardian ad litem, if any), the application for attachment (if
not incorporated in but submitted separately from the
complaint), the order of attachment, and the plaintiff's
attachment bond.

The question as to whether a proper ground existed for the issuance of the writ is a
question of fact the determination of which can only be had in appropriate proceedings
conducted for the purpose (Peroxide Philippines Corporation V. Court of Appeals, 199
SCRA 882 [1991]). It must be noted that the spouses Evangelista's motion to
discharge the writ of preliminary attachment was denied by the lower court for lack of
merit. There is no showing that there was an abuse of discretion on the part of the
lower court in denying the motion.

Moreover, an attachment may not be dissolved by a showing of its irregular or

improper issuance if it is upon a ground which is at the same time the applicant's cause
of action in the main case since an anomalous situation would result if the issues of the
main case would be ventilated and resolved in a mere hearing of a motion (Davao
Light and Power Co., Inc. v. Court of Appeals, supra, The Consolidated Bank and
Trust Corp. (Solidbank) v. Court of Appeals, 197 SCRA 663 [1991]).

In the present case, one of the allegations in petitioner's complaint below is that the
defendant spouses induced the plaintiff to grant the loan by issuing postdated checks
to cover the installment payments and a separate set of postdated cheeks for payment
of the stipulated interest (Annex "B"). The issue of fraud, then, is clearly within the
competence of the lower court in the main action.

WHEREFORE, premises considered, the Court hereby GRANTS the petition. The
challenged decision of the Court of Appeals is REVERSED, and the order and writ of
attachment issued by Hon. Cezar C. Peralejo, Presiding Judge of Branch 98, Regional
Trial Court of Quezon City against spouses Evangelista are hereby REINSTATED.
No pronouncement as to costs.
PROVREM – Atty Tiu (Rule 57, Section 2 FT)
G.R. No. L-46009 May 14, 1979
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.
Certiorari to nullify the Order of Attachment of May 13, 1977, as well as the Writ of
Attachment dated May 16, 1977, issued by respondent Judge in Civil Case No. 10770
of the Court of First Instance of Iloilo, entitled "Rosita Bedro and Benita Yu v.
Spouses Ricardo T. Salas and Maria Salas, et al.
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 in the amount of
P114,000.00, plus the sum of Pl,000.00 as damages daily from June 30, 1976 due to
the stoppage in the construction of their commercial buildings on Lot No. 3, and moral
damages in the amount of P200,000.00.
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; and that private respondents, as a matter of fact, since 1964 had
excluded and separated completely their property (Lots Nos. 2 and 3) from Lot No. 5
by building a concrete wall on the boundary thereon without providing any gate as
entrance or exit towards Lot No. 5; and that private respondents have no personality to
question the validity of the deed of sale over Lot No. 5 since they were not parties to
the same and the sale was duly approved by the probate court.
In a motion dated May 12, 1977, 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.
On May 13, 1977, respondent Judge issued ex-parte a Writ of Attachment "against the
properties of the defendants particularly Lots Nos. 1 and 4 of Psc-2157 less the
building standing thereon upon the plaintiffs filing a bond in the amount of
P200,000.00 subject to the approval of this Court." After a surety bond in the amount
of P200,000.00, executed on May 11, 1977 by the Central Surety and Insurance
Company as surety was filed, the writ itself was issued by respondent Judge on May
16, 1977, directing the Sheriff to attach the properties above-mentioned. On May 17,
1977, the Deputy Sheriff of Iloilo levied upon the aforesaid properties of petitioners.
Contending that respondent Judge gravely abused his discretion in issuing the said
Writ of Attachment, petitioners filed the present petition.
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, which provides the following
SEC. 13. Discharge of attachment for improper or irregular
issuance. — The party whose property has been attached
may also, at any time either before or after the release of the
attached property, or before any attachment shall have been
actually levied, upon reasonable notice to the attaching
creditor, apply to the judge who Salas vs. Adil granted the
order, or to the judge of the court in which the action is
pending, for an order to discharge the attachment on the
ground that the same was improperly or irregularly issued. If
the motion be made on affidavits on the part of the party
whose property has been attached, but not otherwise, the
attaching creditor may oppose the same by counter-affidavits
or other evidence in addition to that on which the attachment
was made. After hearing, the judge shall order the discharge
of the attachment if it appears that it was improperly or
irregularly issued and the defect is not cured forthwith.
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
In Carpio v. Macadaeg, 2 this Court said:
Respondent Judge should not have issued the two writs of
preliminary attachment (Annexes C and C-1) on Abaya's
simple allegation that the petitioner was about to dispose of
his property, thereby leaving no security for the satisfaction
of any judgment. Mere removal or disposal of property, by
itself, is not ground for issuance of preliminary attachment,
notwithstanding absence of any security for the satisfaction
of any judgment against the defendant. The removal or
disposal, to justify preliminary attachment, must have been
made with intent to defraud defendant's creditors.
Respondent Judge in fact corrected himself. Acting on
petitioner's motion to discharge attachment and apparently
believing the correctness of the grounds alleged therein, he
set aside the orders of attachment (Order of March 11, 1960,
Annex F)
But reversing himself again, he set aside his order of March
11, 1960 (Annex K, dated March 29, 1960). This he did
apparently on Abaya's contention that petitioner was about to
remove or dispose of his property in order to defraud his
creditors, as examples of which disposals he pointed to the
alleged sale of the horses and of petitioner's office furniture.
... These averments of fraudulent disposals were
controverted by petitioner who ... reiterated the defenses
against preliminary attachment which he had previously
enumerated in his petition to discharge the two orders of
attachment. Thus the question of fraudulent disposal was put
in issue; and respondent Judge, before issuing the pre
attachment anew, should have given the parties opportunity
to prove their respective claims or, at the very least should
have provided petitioner with the chance to show that he had
not been disposing of his property in fraud of creditors.
(citing National Coconut Corporation v. Pecson L-4296,
Feb. 25, 1952, Villongco v. Panlilio, 6214, Nov. 20, 1953).
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.
We think, however, that a rule sufficient for the
determination of this case has been suggested and acted
upon, and that the remedy does not exist where unliquidated
damages were demanded. ... In Warwick v. Chase, 23 Md
161, it is said: 'It is necessary that the standard for
ascertaining the amount of damages claimed should not only
appear, but that it should be fixed and certain, and in no
degree dependent on facts either speculative or Uncertain ...
The general rule is, that unliquidated damages, ... cannot be
recovered by attachment, unless the contract affords a certain
measure or standard for ascertaining the amount of the
damages ... 4
PROVREM – Atty Tiu (Rule 57, Section 2 FT)

Further.

The statute authorizing the issuance of the writ of

garnishment and that relating to the issuance of the writ of
attachment ... have not been construed as authorizing the
writs to be issued when the plaintiff's suit is technically an
action for debt. Neither of the writs may be issued when the
suit is for damages for tort, but they may be issued when the
plaintiff's claim arises out of contract either express or
implied, and the demand is liquidated, that is, the amount of
the claim is not contingent, is capable of being definitely
ascertained by the usual means of evidence, and does not rest
in the discretion of the jury. 5

WHEREFORE, the instant petition is hereby DENIED, in order to enable petitioners

to move before respondent Court for the discharge of the attachment on the ground of
its improper and irregular issuance, pursuant to section 13, Rule 57, of the Revised
Rules of Court, and for the aforesaid Court to act thereon in accordance with the
foregoing.
PROVREM – Atty Tiu (Rule 57, Section 2 FT)

G.R. No. 40054 September 14, 1933

LA GRANJA, INC., petitioner,

vs.
FELIX SAMSON, Judge of First Instance of Cagayan, CHUA BIAN, CHUA YU
LEE and CHUA KI, respondents.

In this original petition for mandamus filed by the corporate entity, La Granja, Inc.,
against Felix Samson, as Judge of the Court of First Instance of Cagayan, Chua Bian,
Chua Yu Lee and Chua Ki, the petitioner herein, for the reasons stated in its petition,
prays that a writ of mandamus be issued against the respondent Judge compelling him
to issue a writ of attachment against the properties of the other respondents herein,
who are defendants in civil case No. 1888 of the Court of First Instance of Cagayan.
The pertinent facts necessary for the solution of the questions raised in the present
case are as follows:

On July 5, 1932, the petitioner herein, La Granja, Inc., filed a complaint in the Court
of First Instance of Cagayan, against Chua Bian, Chua Yu Lee and Chua Ki, for the
recovery of the sum of P2,418.18 with interest thereon at the rate of 12 per cent per
annum, which case was docketed as civil case No. 1888. The plaintiff at the same
time, also prayed for the issuance of an order of attachment against the
aforementioned defendants' property and accompanied said complaint with an
affidavit of the manager of the aforesaid petitioner, La Granja, Inc., wherein it was
alleged among other essential things, that the said defendants have disposed or are
disposing of their properties in favor of the Asiatic Petroleum Co., with intent to
defraud their creditors. The respondent judge, wishing to ascertain or convince himself
of the truth of the alleged disposal, required the petitioner herein to present evidence to
substantiate its allegation, before granting its petition. Inasmuch as the petitioner
refused to comply with the court's requirement, alleging as its ground that was not
obliged to do so, the respondent judge dismissed said petition for an order of
attachment.

The only question to decide in the present case is whether or not the mere filing of an
affidavit executed in due form is sufficient to compel a judge to issue an order of
attachment.

Section 426 of the Code of Civil procedure provides the following:

SEC. 426. Granting order of attachment. — A judge or justice of the

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

It will be seen that the legal provision just cited orders the granting of a writ of
attachment when it has been made to appear by affidavit that the facts mentioned by
law as sufficient to warrant the issuance thereof, exist. Although the law requires
nothing more than the affidavit as a means of establishing the existence of such facts,
nevertheless, such affidavit must be sufficient to convince the court of their existence,
the court being justified in rejecting the affidavit if it does not serve this purpose and
in denying the petition for an order of attachment. The affidavit filed by the petitioner,
La Granja, Inc., must not have satisfied the respondent judge inasmuch as he desired
to ascertain or convince himself of the truth of the facts alleged therein by requiring
evidence to substantiate them. The sufficiency or insufficiency of an affidavit depends
upon the amount of credit given it by the judge, and its acceptance or rejection, upon
his sound discretion.

Hence, the respondent judge, in requiring the presentation of evidence to establish the
truth of the allegation of the affidavit that the defendants had disposed or were
disposing of their property to defraud their creditors, has done nothing more than
exercise his sound discretion in determining the sufficiency of the affidavit.

In view of the foregoing considerations, we are of the opinion and so hold that the
mere filing of an affidavit executed in due form is not sufficient to compel a judge to
issue an order of attachment, but it is necessary that by such affidavit it be made to
appear to the court that there exists sufficient cause for the issuance thereof, the
determination of such sufficiency being discretionary on the part of the court.

Wherefore, the petition for a writ of mandamus is hereby denied and the same is
dismissed, with costs against the petitioner. So ordered.