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  • Issued in Favor of Agente, A Special Power of Attorney To Sell His House and Lot

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    Erwin Dacanay
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    Bayani filed a case against Agente to recover money owed from the sale of Bayani's property. Bayani was granted a writ of preliminary attachment by the court. The sheriff served the writ on Agente's property and simultaneously served the summons and complaint. Agente argued the writ was improper as he had not yet been served at the time of issuance. However, the court found the writ was properly issued and executed since service of the summons and complaint accompanied the levy on Agente's property, as required.

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    preliminary attachment

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    Bayani filed a case against Agente to recover money owed from the sale of Bayani's property. Bayani was granted a writ of preliminary attachment by the court. The sheriff served the writ on Agente's property and simultaneously served the summons and complaint. Agente argued the writ was improper as he had not yet been served at the time of issuance. However, the court found the writ was properly issued and executed since service of the summons and complaint accompanied the levy on Agente's property, as required.

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    © All Rights Reserved
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    51 views1 page

    Issued in Favor of Agente, A Special Power of Attorney To Sell His House and Lot

    Uploaded by

    Erwin Dacanay
    Bayani filed a case against Agente to recover money owed from the sale of Bayani's property. Bayani was granted a writ of preliminary attachment by the court. The sheriff served the writ on Agente's property and simultaneously served the summons and complaint. Agente argued the writ was improper as he had not yet been served at the time of issuance. However, the court found the writ was properly issued and executed since service of the summons and complaint accompanied the levy on Agente's property, as required.

    Copyright:

    © All Rights Reserved
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    of 1

    1.

    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).

    b. Was the writ of preliminary attachment properly executed?


    Answer: Yes. When the writ of attachment was served to Agente, the summons and
    copy of the complaint were also simultaneously served. It is appropriate to reiterate
    Court's exposition in the Davao Light and Power case, 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 (Cuartero v. CA, G.R. No. 102448).

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