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Issued in Favor of Agente, A Special Power of Attorney To Sell His House and Lot
Issued in Favor of Agente, A Special Power of Attorney To Sell His House and Lot
Bayani, an overseas worker based in Dubai, issued in favor of Agente, a special power of
attorney to sell his house and lot. Agente was able to sell the property but failed to remit the
proceeds to Bayani, as agreed upon. On his return to the Philippines, Bayani, by way of a
demand letter duly received by Agente, sought to recover the amount due him. Agente
failed to return the amount as he had used it for the construction of his own house. Thus,
Bayani filed an action against Agente for sum of money with damages. Bayani
subsequently filed an ex-parte motion for the issuance of a writ of preliminary attachment
duly supported by an affidavit. The court granted the ex-parte motion and issued a writ of
preliminary attachment upon Bayani’s posting of the required bond. Bayani prayed that the
court’s sheriff be deputized to serve and implement the writ of attachment. On November
19, 2013, the Sheriff served upon Agente the writ of attachment and levied on the latter’s
house and lot. On November 20, 2013, the Sheriff served on Agente summons and a copy
of the complaint. On November 22, 2013, Agente filed an Answer with Motion to Discharge
the Writ of Attachment alleging that at the time the writ of preliminary attachment was
issued, he has not been served with summons and, therefore, it was improperly issued.
a. Is Agente correct?
Answer: No. 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. 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 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 (Cuartero v. CA, G.R. No. 102448).