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260 SUPREME COURT REPORTS ANNOTATED
Cuartero vs. Court of Appeals
*
G.R. No. 102448. August 5, 1992.
RICARDO CUARTERO, petitioner, vs. COURT OF
APPEALS, ROBERTO EVANGELISTA and FELICIA
EVANGELISTA, respondents.
Remedial Law; Civil Procedure; Preliminary Attachment;
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.—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.
Same; Same; Same; Jurisdiction over the defendant; Once the
implementation of the writ 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.—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
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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.
__________________
* THIRD DIVISION.
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Cuartero vs. Court of Appeals
Same; Same; Same; Irregular or improper issuance of
attachment; 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 situa-tion would result if the issues of the
main case would be ventilated and resolved in a mere hearing of a
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 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.
PETITION for review on certiorari of the decision of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Abesamis, Medialdea & Abesamis for petitioner.
Eufemio Law Offices for private respondent.
GUTIERREZ, JR., J.:
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
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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.
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262 SUPREME COURT REPORTS ANNOTATED
Cuartero vs. Court of Appeals
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 a 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,
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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
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Cuartero vs. Court of Appeals
denied for lack of merit in a resolution dated October 22,
1991. Hence, the present recourse to this Court.
The petitioner raises the following assignments of
errors:
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:
“x x x 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
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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
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264 SUPREME COURT REPORTS ANNOTATED
Cuartero vs. Court of Appeals
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
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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
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VOL. 212, AUGUST 5, 1992 265
Cuartero vs. Court of Appeals
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.
The writ of preliminary attachment can be applied for
and granted at the 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—
“x x x 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
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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:
“x x x It is incorrect to theorize that after an action or proceeding
has been commenced and jurisdiction over the person of the
plaintiff has been vested in the Court, but before acquisition of
jurisdiction over the person of the defendant (either by service of
summons or his voluntary submission to the Court’s authority),
nothing can be validly done by the plaintiff or the Court. It is
wrong to assume that the f
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Cuartero vs. Court of Appeals
validity of acts done during the period should be dependent 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
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
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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:
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Cuartero vs. Court of Appeals
“x x x 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
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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. (Solid-bank) 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 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.
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 Evangel-
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268 SUPREME COURT REPORTS ANNOTATED
Vda. de Maglana vs. Consolacion
ista are hereby REINSTATED. No pronouncement as to
costs.
SO ORDERED.
Feliciano, Bidin and Davide, Jr., JJ., concur.
Romero, J., No part.
Petition granted; decision reversed.
Note.—It is well-settled that issuance of a writ of
preliminary attachment may be made by the court ex-parte
(Uy vs. Court of Appeals, 191 SCRA 275).
——o0o——
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