PRELIMINARY ATTACHMENT
The ancillary nature of provisional remedies
GMA v. NTC
Doctrine: Section 3, Part VI of the NTC Rules of
Procedure and Practices grants the NTC the
power to issue provisional reliefs upon the filing
of a complaint or at any subsequent stage. For
this reason, the NTC has the authority to
determine the propriety of the issuance of a
cease and desist order, which is a provisional
relief. Provisional reliefs or remedies are writs
and processes that are available during the
pendency of the action. A litigant may avail of
provisional remedies to preserve and protect
certain rights and interests pending the
issuance of the final judgment in the case.
These remedies are provisional because they
are temporary measures availed of during the
pendency of the action; they are ancillary
because they are mere incidents in and are
dependent on the result of the main action.
Facts:
Petitioner filed a complaint before the NTC
against respondents for allegedly holding
transactions resulting in monopolies and
combinations of trade in communication and
mass media. Later on, ABSCBN and Benpres
corporation executed an MCA or master
consolidation agreement with PLDT and
Mediaquest to combine their rights and interest
in Skylink.
Petitioner prays for respondents to cease and
desist from such consolidation. They contend
that the merger should be accompanied with
the approval of the NTC and the Congress. NTC
denied this saying that the resolution of the
motion would necessarily resolve the main case
without the presentation of evidence.
Issue:
Was NTC’s denial proper?
Ruling:
NO.
means that they are adjunct to the main suit.43
Consequently, it is not uncommon that the
issues in the main action are closely
intertwined, if not identical, to the allegations
and counter-allegations of the opposing parties
in support of their contrary positions
concerning the propriety or impropriety of the
provisional relief.44
The distinguishing factor between the
resolution of the provisional remedy and the
main case lies in the temporary character of the
ruling on the provisional relief, thus, the term
“provisional.”45 The resolution of the
provisional remedy, however, should be
confined to the necessary issues attendant to its
resolution without delving into the merits of the
main case.46
In other words, although a resolution of a
motion for the issuance of a provisional relief
necessarily involves issues intertwined with the
main action, this reality is not a legal obstacle to
the authorized agency’s resolution of a prayer
for a provisional relief on a temporary basis
pending the resolution of the main case.
In fact, Section 3, Part VI of the NTC Rules of
Procedure and Practices provides that the NTC
may grant the provisional relief, on its own
initiative or upon a party’s motion, based on the
pleading and the attached affidavits and
supporting documents, without prejudice to a
final decision after completion of the hearing.
In these lights, we reverse the CA’s findings and
rule that the NTC gravely abused its discretion
in denying the motion for the issuance of a
cease and desist order based only on the
ground that it would necessarily resolve the
main action.
Be that as it may, we cannot grant the
petitioner’s prayer asking the Court to issue the
cease and desist order. The petitioner failed to
comply with the requirements for its issuance.

Calderon v. ROXAS
Doctrine:
Provisional remedies are writs and processes
available during the pendency of the action
which may be resorted to by a litigant to
preserve and protect certain rights and interests
therein pending rendition, and for purposes of
the ultimate effects, of a final judgment in the
case. They are provisional because they
constitute temporary measures availed of
during the pendency of the action, and they are
ancillary because they are mere incidents in and
are dependent upon the result of the main
action. The subject orders on the matter of
support pendente lite are but an incident to the
main action for declaration of nullity of
marriage.
Facts:
Parties got married and had four children. Three
years later, petitioner filed an action for
declaration of nullity of marriage. The court
ordered private respondent to support the
children in the amount of 40k. PR retorted that
this was lower than his salary and asked for a
reduction. Two orders granting such a reduction
were granted by the trial court. Petitioner
appealed such orders.
CA dismissed the appeal on the ground that it
would disturb the RTC decision. Further,
petitioners failed to ask for the proper remedy
against an interlocutory order.
Issue:
Did the CA commit grave abuse of discretion
when it ruled that the orders appealed from by
the petitioner is merely interlocutory?
Ruling:
NO. The subject orders on the matter of support
pendente lite are but an incident to the main
action for declaration of nullity of marriage.
Buyco v. Baraquia
Doctrine:
A writ of preliminary injunction is an order
granted at any stage of an action or proceeding
prior to the judgment or final order, requiring a
party or a court, agency or a person to refrain
from a particular act or acts.8 It is merely a
provisional remedy, adjunct to the main case
subject to the latter’s outcome It is not a cause
of action in itself.10 Being an ancillary or
auxiliary remedy, it is available during the
pendency of the action which may be resorted
to by a litigant to preserve and protect certain
rights and interests therein pending rendition,
and for purposes of the ultimate effects, of a
final judgment in the case.
The writ is provisional because it constitutes a
temporary measure availed of during the
pendency of the action and it is ancillary
because it is a mere incident in and is
dependent upon the result of the main action.
Facts:
Baraquia filed a complaint against the Buycos
for the easement of a right of way with
preliminary injunction with TRO. Prayer for
prelim injunction was granted. However, the
trial court dismissed the main case for the
easement of right of way for lack of essential
requisites. Thus, the prelim injunction was
lifted.
Later on, the Buycos closed off the road.
Respondents filed a motion to cite petitioners in
contempt for violating the prelim injunction.
This was granted. Petitioner argued that a
prelim injunction once quashed ceases to exist.
Issue:
whether the lifting of a writ of preliminary
injunction due to the dismissal of the complaint
is immediately executory, even if the dismissal
of the complaint is pending appeal.
Ruling:
The present case having been heard and found
dismissible as it was in fact dismissed, the writ
of preliminary injunction is deemed lifted, its
purpose as a provisional remedy having been
served, the appeal therefrom notwithstanding.
HPPL v. SBMA
Doctrine:
At the outset, the application for the injunctive
writ is only a provisional remedy, a mere
adjunct to the main suit. Thus, it is not
uncommon that the issues in the main action
are closely intertwined, if not identical, to the
allegations and counter allegations propounded
by the opposing parties in support of their
contrary positions concerning the propriety or
impropriety of the injunctive writ. While it is not
our intention to preempt the trial court’s
determination of the issues in the main action
for specific performance, this Court has a
bounden duty to perform; that is, to resolve the
matters before this Court in a manner that gives
essence to justice, equity and good conscience.
Facts:
Petitioner, a foreign corporation, was awarded
by the Pre-Qualification, Bids and Awards
Committee (PBAC) of Subic Bay Metropolitan
Authority (SBMA) the concession to develop
and operate a modern marine container
terminal within the Subic Bay Freeport Zone. A
resolution was issued declaring the immediate
commencement of negotiations with petitioner.
Before the award, however, respondent RPSI
sought the setting aside of ICTSI's bid on the
ground that ICTSI is legally barred from
operating a second port pursuant to Executive
Order No. 212 and DOTC Order 95-863 as it
already operates the Manila International
Container Port. The issue reached the Office of
the President which originally mandated the re-
evaluation of the bids but later recommended
that another bidding be conducted. SBMA was
enjoined from signing the concession contract
with petitioner. Feeling aggrieved, petitioner
resorted to a judicial action with the RTC for
specific performance claiming that a binding
and legally enforceable contract had been
established between petitioner and SBMA.
During the pendency of the case, SBMA opened
the rebidding of the project. This was sought to
be enjoined by petitioner, but the trial court
denied the same. It ruled that under Section 21
of R.A. No. 7227, the implementation of
projects shall not be restrained or enjoined
except by an order from the Supreme Court.
Hence, the present recourse, with petitioner
seeking to obtain a prohibitory injunction.
Ruling:
For an injunction to be issued, applicant must
show that it has a clear and unmistakable right
to be declared the winning bidder with finality.
The SBMA Board of Directors and other officers
are subject to the control and supervision of the
Office of the President and all its projects
require the approval of the President of the
Philippines who may overturn or reverse any
award made by the SBMA. When the President
set aside the award previously declared by the
SBMA in favor of petitioner and directing a
rebidding, petitioner acquired no clear and
unmistakable right as the award CD
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Petitioner, a foreign corporation, by
participating in a bidding process is considered
as "doing business." It should have applied for a
license to submit itself to the jurisdiction of the
courts of this state and to enable the
government to exercise jurisdiction over it for
the regulation of its activities in this country.
Having failed to secure one, it is held that
petitioner is incapacitated to bring this petition.
Watercraft Venture v. Wolfe
Doctrine:
The applicant for a writ of preliminary
attachment must sufficiently show the factual
circumstances of the alleged fraud because
fraudulent intent cannot be inferred from the
debtor’s mere nonpayment of the debt or
failure to comply with his obligation.
Facts:
Watercraft hired Wolfe as a Shipyard Manager.
Wolfe stored a sailboat in the storing facilities
of Watercraft but never paid for storage fees.
Later, Wolfe was terminated from employment.
Despite repeated demands, he never paid for
said fees.
Watercraft filed a collection suit with
application for preliminary attachment. Wolfe
contended that there was an agreement
executed between him and Watercraft’s general
manager. He claims that there is nothing in the
agreement stipulating that storage fees will be
paid.
RTC granted the application for preliminary
attachment. Wolfe filed a Motion to Discharge
the Writ of Attachment saying that Watercraft
failed to show the existence of fraud and that
mere failure to pay an obligation neither
amounts thereto.
RTC denied Wolfe’s motion.
Issue:
Is there fraud in this case warranting the
approval of the preliminary attachment?
Ruling:
NONE. For the issuance of an ex parte issuance
of the preliminary attachment to be valid, an
affidavit of merit and an applicant’s bond must
be filed with the court14 in which the action is
pending. Such bond executed to the adverse
party in the amount fixed by the court is subject
to the conditions that the applicant will pay: (1)
all costs which may be adjudged to the adverse
party; and (2) all damages which such party may
sustain by reason of the attachment, if the court
shall finally adjudge that the applicant was not
entitled thereto.
After a careful perusal of the foregoing
allegations, the Court agrees with the CA that
Watercraft failed to state with particularity the
circumstances constituting fraud, as required by
Section 5,24 Rule 8 of the Rules of Court, and
that Wolfe’s mere failure to pay the boat
storage fees does not necessarily amount to
fraud, absent any showing that such failure was
due to insidious machinations and intent on his
part to defraud Watercraft of the amount due
it.
Yu v. Miranda
Doctrine:
Jurisprudence has held that a writ of
preliminary attachment is only a provisional
remedy issued upon order of the court where
an action is pending; it is an ancillary remedy.
Facts:
There was a collection suit between Morning
Star and Miranda involving a parcel of land.
Allegedly, Morning Star defaulted in payment to
Miranda as to the usage of said land. A Writ of
Preliminary attachment was also filed by
Miranda aside from the complaint in the
collection suit against Morning star involving
the parcel of land.
RTC granted such application and the decision
became final and executory. Thereafter,
Petitioner attempted to intervene in the said
suit saying that their interests are affected by
the preliminary attachment. They filed for
certiorari before the CA.
Issue:
May Yu intervene?
Ruling:
Nope. The only involvement or interest of Yu in
the case at bar is with regard to the issue on
preliminary attachment which is merely
incidental to the main cause of action that is a
collection suit. Although Rule 57 Sec 14 allows a
third party to intervene in an issue regarding
preliminary attachment, Yu did not file any
affidavit for that purpose.
Adlawan v. Tomol
Doctrine:
Attachment being an ancillary remedy, attached
properties should be ordered returned once the
main suit is withdrawn or dismissed, regardless
of pending replevin suit in another court
branch.
Facts:
Adlawan was a contractor in charge of certain
government construction projects. To fulfill this,
he sought financial assistance from Aboitiz.
However, Adlawan failed to pay the
amortizations and so Aboitiz filed a collection
suit against Adlawan with Urgent motion ex
parte without notice and hearing to issue a writ
of preliminary attachment. This was granted by
Judge Tomol. Adlawan filed a motion for bill of
particulars with motion to set aside the writ of
preliminary attachment. This was granted by
Judge Tomol and the writ was lifted.
Petitioner’s properties were attached on the
strength of the writs of preliminary attachment
issued without notice and hearing by the
executive judge.
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.
Issue:
Is the writ of preliminary attachment proper?
Ruling:
NO. 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.
Northern Islands v. Garcia
Doctrine:
Being merely ancillary to a principal proceeding,
the attachment must fail if the suit itself cannot
be maintained as the purpose of the writ can no
longer be justified. The consequence is that
where the main action is appealed, the
attachment which may have been issued as an
incident of that action, is also considered
appealed and so also removed from the
jurisdiction of the court a quo. The attachment
itself cannot be the subject of a separate action
independent of the principal action because the
attachment was only an incident of such action.
Facts:
Northern Islands Co., Inc. (petitioner) filed a
Complaint with application for a writ of
preliminary attachment, before the RTC against
respondents, docketed as Civil Case No. Q-05-
53699 (Main Case), which was subsequently
amended on October 25, 2005. It alleged that:
(a) from March to July 2004, petitioner caused
the delivery to respondents of various
appliances in the aggregate amount of
P8,040,825.17;7 (b) the goods were
transported, shipped, and delivered by Sulpicio
Lines, Inc., and were accepted in good order
and condition by respondents’ representatives;
(c) the parties agreed that the goods delivered
were payable within 120 days.
Respondent filed a bond. He also filed a motion
to discharge excess attachment. These were
denied by RTC for lack of merit. The case was
elevated before the CA. CA noted that the RTC
already lost the jurisdiction over the issue on
preliminary attachment when the main case
was appealed from by certiorari.
Issue:
Does the RTC have jurisdiction over the issue
on prelim attachment?
Ruling;
NO. With the RTC’s loss of jurisdiction over the
Main Case necessarily comes its loss of
jurisdiction over all matters merely ancillary
thereto. Thus, the propriety of conducting a trial
by commissioners in order to determine the
excessiveness of the subject preliminary
attachment, being a mere ancillary matter to
the Main Case, is now mooted by its
supervening appeal.
PCIB v. Alejandro
Doctrine:
Even on the allegation that respondent is a
resident temporarily out of the Philippines,
petitioneris still not entitled to a writ of
attachment because the trial court could
acquire jurisdiction over thecase by substituted
service instead of attaching the property of the
defendant.
Facts:
Petitioner filed against respondent a complaint
for sum of money with prayer for the issuance
of a writ of preliminary attachment. Said
complaint alleged that respondent, a resident of
Hong Kong,executed in favor of petitioner a
promissory note obligating himself to pay
P249,828,588.90 plusinterest. In praying for the
issuance of a writ of preliminary attachment
under Section 1 paragraphs (e) and(f) of Rule 57
of the Rules of Court, petitioner alleged that (1)
respondent fraudulently withdrewhis
unassigned deposits notwithstanding his
verbal promise to PCIB Assistant Vice
PresidentCorazon B. Nepomuceno not to
withdraw the same prior to their assignment as
security for theloan; and (2) that
respondent is not a resident of the
Philippines. The trial court granted
theapplication and issued the writ ex parte. The
bank deposits of respondent with Rizal
CommercialBanking Corporation (RCBC)
were garnished. Respondent filed a
motion to quash the writcontending that
the withdrawal of his unassigned deposits was
not fraudulent as it was approvedby petitioner.
He also alleged that petitioner knew that
he maintains a permanent residence atCalle
Victoria, Ciudad Regina, Batasan Hills, Quezon
City, and an office address in Makati City atthe
Law Firm Romulo Mabanta Buenaventura Sayoc
& De los Angeles, where he is a
partner.Respondent added that he is the
managing partner of the Hong Kong branch of
said Law Firm;that his stay in Hong Kong is only
temporary.
The trial court issued an order quashing the writ
and holding that the withdrawal of
respondent’sunassigned deposits was not
intended to defraud petitioner.
concluded that petitionermisrepresented
and suppressed the facts regarding
respondent’s residence considering that it
has personal and official knowledge that
for purposes of service of summons,
respondent’s residence and office addresses are
located in the Philippines. Meanwhile,
respondent filed a claim for damages in the
amount of P25 Million on the attachmentbond.
The trial court awarded damages to
respondent in the amount of P25 Million
withoutspecifying the basis thereof. Petitioner
elevated the case to the Court of Appeals which
affirmedthe findings of the trial court. It held
that in claiming that respondent was not a
resident of thePhilippines, petitioner cannot be
said to have been in good faith considering that
its knowledge ofrespondent’s Philippine
residence and office address goes into the very
issue of the trial court’sjurisdiction which would
have been defective had respondent not
voluntarily appeared before it.
Issue:
Whether or not issuance of writ of preliminary
attachment is the proper remedy
Ruling:
No. Where the defendant is a resident who is
temporarily out of the Philippines, attachment
ofhis/her property in an action in personam, is
not always necessary in order for the court to
acquirejurisdiction to hear the case.
Liberty Insurance Corporation v. CA
Doctrine:
To constitute a ground for attachment, fraud
should be committed upon contracting the
obligation sued upon, that is, the debtor has a
preconceived plan or intention not to pay as
may be inferred from the circumstances
It
attendant in each case.
Facts:
Imperial Organizations entered into an
agreement with Coca Cola involving a concert.
One of the conditions of said agreement is that
Imperial must not violate the terms of the
agreement. In order to pay for the advances,
Imperial sought the assistance of petitioner.
Later, the agreement was violated. Petitioner
demanded reimbursement from Imperial. Soon,
Petitioner applied for the issuance of a writ of
prelim attachment against private respondents.
Trial Court granted the writ.
Issue:
Was the writ of prelim attachment erroneously
issued?
Ruling:
No. It is therefore clear that fraud was present
when private respondent, among others,
entered into an indemnity agreement with
petitioner. The actuations of respondent Arkin
indubitably lead to the conclusion that he never
entertained the idea of fulfilling his obligations
under the agreement and was bent on
defrauding petitioner from the very beginning.
Under the circumstances, we perceive no
impropriety or irregularity in the issuance of the
writ of attachment especially so where
petitioner has fully complied with the
requirements for the issuance thereof.
On the contrary, what we see as having been
attended by irregularity is the assailed order of
respondent judge lifting the writ of attachment
based on grounds which are contradicted by the
evidence on record.
Be that as it may, the instant case being “an
action against a party who has been guilty of
fraud in contracting the obligation upon which
the action is brought”, respondent Arkin is not
allowed to file a motion to dissolve the
attachment on the ground that the writ has
been improperly or irregularly issued.
Obana v. CA
Doctrine:
It should be noted that Section 7 of Rule 57
requires that in attaching real property a copy
of the order, description, and notice must be
served on the occupant.
Facts:
Suntay was the counsel of Liberty Dizon and her
children in an intestate proceeding. Suntay soon
filed a Motion to Order the Guardian to Pay the
Attorney’s Fees in the amount of Php 5,000.00.
Liberty failed to comply with the order and so
Suntay moved for the issuance of a preliminary
attachment upon a certain parcel of land
belonging to Liberty. The Writ of Attachment
was issued.
The Sherriff failed to serve summons on Liberty
and so publication was resorted to. Liberty
argues that they were not properly served
summons and so the property was not properly
attached.
Issue:
Was the attachment proper?
Ruling:
No. Respondent Suntay cannot claim ignorance
of the sale to petitioner Obaña as a ground for
not bringing her into the picture. As stressed by
the petitioner, Liberty Dizon filed her motion for
the approval of the sale of the disputed house
and lot in the Obaña vs. Court of Appeals,
guardianship case SP-C-00565 through her
counsel, herein private respondent Suntay (Exh.
Q, original records). He could not have been
unaware that the house and lot he was
attaching had been sold to Obaña because the
sale of the Dalmar property was authorized by
the guardianship court in the case where he
was counsel for the guardian.
Consolidated Plywood Industries v. Breva
Doctrine:
For service of summons by publication to be
valid and effective, there must first be an
attachment of the property of the defendant;
Attachment converts the action into a
proceeding in rem or quasi in rem.
Facts:
Petitioner is a co-owner of a parcel of land with
MHEC. After acquiring its undivided half share,
CPII occupied the property. Petitioner also
performed repairs and improvements on the
property. It sought to recover the amount of
repairs from MHEC. After the extrajudicial
demand failed, petitioner filed a collection suit
before the RTC.
Summons were served on MHEC by publication.
Issue:
Did the RTC acquire jurisdiction over MHEC?
Ruling:
NO. personal service of summons within the
forum, is essential to the acquisition of
jurisdiction over the person of the defendant,
who does not voluntarily submit himself to the
authority of the court. In other words,
summons by publication cannot—consistently
with the due process clause in the Bill of Rights
—confer upon the Court jurisdiction over said
defendant,” and that “x x x (t)he proper
recourse for a creditor in the same situation as
petitioner is to locate properties, real or
personal, of the resident defendant debtor with
unknown address and cause them to be
attached under Rule 57, section 1(f), in which
case, the attachment converts the action into a
proceeding in rem or quasi in rem and the
summons by publication may then accordingly
be deemed valid and effective.”15
Accordingly, and service of summons by
publication here not having been preceeded by
attachment of property of MHEC, it did not
confer on the Trial Court jurisdiction over the
person of said defendant, and it is on this score
that petitioner’s action must be, as it is hereby,
DISMISSED.
Sahagun v. CA
Doctrine:
Summons by publication is allowed in
attachment proceedings.
Facts:
It was alleged that Abel Sahagun made it appear
that his company had sold a motor vehicle to
one Ernesto Salazar who issued a promissory
note for the price and executed as security for
the payment of the note a chattel mortgage on
the motor vehicle in favor of Rallye.
Subsequently, Rallye, through said Abel
Sahagun, assigned the note and the chattel
mortgage to Filinvest for valuable
consideration. When the note matured, Salazar
failed to pay the value thereof to the assignee,
respondent Filinvest, compelling it to sue.
However, Filinvest discovered later that the
mortgaged car had not been delivered to
Salazar by Sahagun.
After Filinvest brought suit against Abel
Sahagun, a writ of attachment was issued and
subsequently levied on the house and lot4
registered in his name.
There was failure to serve summons
extraterritorially upon defendant Abel Sahagun.
Issue:
Did the court acquire jurisdiction over Abel?
Ruling:
Yes. Petition is granted. The foregoing
notwithstanding, we are not inclined to order
the dismissal of the case below for non-
compliance by private respondent of the trial
court’s order of January 10, 1986. The
attachment of property registered in the name
of defendant Abel Sahagun justifies summons
by publication and, although that ownership
appears to be disputed and should precisely be
a priority concern of the trial court to resolve,
nonetheless a prima facie justification for
extraterritorial service of summons on said
nonresident defendant clearly exists. The
erroneous transmission of copies of the
summons and the complaint to what appears as
an incorrect last known address of said
defendant is a matter which the trial court can
more readily ascertain and remedy.
Torres v. Satsatin
Doctrine:
As a preliminary note, a distinction should be
made between issuance and implementation of
the writ of attachment. It is necessary to
distinguish between the two to determine when
jurisdiction over the person of the defendant
should be acquired to validly implement the
writ.
Facts:
Respondent Guina filed a case for collection of
sum of money against petitioner Mangila.
Summons, however, was not personally served
on Mangila on the allegations that she had
transferred residence and that she had already
left the country. Without recourse to service by
publication, Guina filed a motion for a writ of
preliminary attachment and the trial court
granted the same.
Issue:
Is the issuance of the writ of attachment
proper?
Ruling:
No. The Court ruled against the correctness of
the writ's implementation on the ground that at
the time, jurisdiction over Mangila had not been
acquired. The summons was served later than
the implementation of the writ of attachment
and the same does not confer a retroactive
acquisition of jurisdiction. On the issue of
venue, wherein the case was filed in a place
other than that stipulated by the parties, the
Court ruled the same is proper where the
agreement does not preclude other venues.
However, bringing the case to the venue where
the sole proprietorship business is found, there
is improper venue. Sole proprietorship business
has no separate juridical personality that could
file a suit in court.
Davao Light & Power Co. v. CA
Doctrine:
Rule 57 in fact speaks of the grant of the
remedy "at the commencement of the action or
at any time thereafter." The phrase, "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;" and
the reference plainly is to a time before
summons is served on the defendant, or even
before summons issues.
Facts:
Petitioner filed a collection suit against
Queensland Hotel and Adarna. It contains an
application for the issuance of a writ of
preliminary attachment. The RTC granted ex
parte said application. A bond was filed by
petitioner and the writ of attachment was
issued. Defendants filed a motion to discharge
the attachment for lack of jurisdiction to issue
the writ because at the time it was issued, the
RTC had not yet acquired jurisdiction over the
defendant.
Issue:
May a writ of preliminary attachment issue
against a defendant before acquisition of
jurisdiction over the person of the defendant by
service of summons?
Ruling:
Yes. The writ of attachment may be validly and
properly applied for and granted even before
the defendant is summoned or is heard from.
Cuartero v. CA
Doctrine:
Notice to the adverse party or hearing of the
application is not 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.
Facts:
Cuartero filed an action for the recovery of a
sum of damages against the Evangelista spouses
with a prayer for the issuance of a preliminary
attachment. The RTC granted ex parte the writ
of prelim attachment. It was later on issued and
the properties of said spouses were levied
upon.
The Evangelistas filed a motion to set aside the
order on the ground that it was improperly
issued. RTC denied this and the case was
elevated before the CA by the spouses which
granted the prayer. CA granted this. The case
was brought before the SC.
Issue:
Was the writ of preliminary attachment
improperly issued?
Ruling:
No. 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.
n 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 checks 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.
Excellent Quality Apparel v. Visayan Security &
Insurance Corporation
Doctrine:
By its nature, preliminary attachment, under
Rule 57 of the Rules of Court, “is an ancillary
remedy applied for not for its own sake but to
enable the attaching party to realize upon relief
sought and expected to be granted in the main
or principal action; it is a measure auxiliary or
incidental to the main action.
Under no circumstance, whatsoever, can the
garnished funds or attached properties, under
the custody of the sheriff or the clerk of court,
be released to the attaching party before the
promulgation of judgment.
Facts:
Petitioner entered into a contract with Multi-
Rich for the construction of a garment factory in
CPEZA. The construction of the factory was
completed. Later on, Multi-Rich filed a
complaint for damages with a prayer for the
issuance of a writ of prelim attachment against
petitioner claiming that petitioner is about to
abscond because petitioner has an impending
closure.
RTC issued the writ of prelim attachment in
favor of Multi-Rich. Petitioner filed an answer
and asked for the lifting of the prelim
attachment. It also prayed that the bond filed
by Multi-Rich be held to satisfy petitioner’s
claim for damages. Multi-Rich soon received the
funds of the petitioner even before the trial
began.
Issue:
Was the issuance of the prelim attachment
proper?
Ruling:
No. Clearly, petitioner failed to comply with the
requisites under Section 20, Rule 57 because
Visayan Surety was not given due notice on the
application for damages before the finality of
judgment. The subsequent motion for
execution, which sought to implicate Visayan
Surety, cannot alter the immutable judgment
anymore.