Scribd Logo
Upload

Welcome to Scribd!

  • Mindanao Savings Bank v. Ca

    Uploaded by

    Rosella de la Cruz
    31 views2 pages
    This case discusses objections that can be raised against a writ of preliminary attachment after a counterbond has been filed. The Supreme Court held that [1] objections to the impropriety or irregularity of a writ cannot be invoked once a counterbond is filed, and [2] a defendant cannot ask for cancellation of the counterbond on the ground that the attachment order was improperly issued, as the surety on the counterbond remains liable until the court absolves the defendant of the plaintiff's claims. The Court of Appeals' decision dismissing the petition for certiorari was therefore upheld.

    Original Description:

    Original Title

    MINDANAO SAVINGS BANK V. CA

    Copyright

    © Attribution Non-Commercial (BY-NC)

    Available Formats

    DOCX, PDF, TXT or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document
    This case discusses objections that can be raised against a writ of preliminary attachment after a counterbond has been filed. The Supreme Court held that [1] objections to the impropriety or irregularity of a writ cannot be invoked once a counterbond is filed, and [2] a defendant cannot ask for cancellation of the counterbond on the ground that the attachment order was improperly issued, as the surety on the counterbond remains liable until the court absolves the defendant of the plaintiff's claims. The Court of Appeals' decision dismissing the petition for certiorari was therefore upheld.

    Copyright:

    Attribution Non-Commercial (BY-NC)
    Download as DOCX, PDF, TXT or read online from Scribd
    Flag for inappropriate content
    Download as docx, pdf, or txt
    31 views2 pages

    Mindanao Savings Bank v. Ca

    Uploaded by

    Rosella de la Cruz
    This case discusses objections that can be raised against a writ of preliminary attachment after a counterbond has been filed. The Supreme Court held that [1] objections to the impropriety or irregularity of a writ cannot be invoked once a counterbond is filed, and [2] a defendant cannot ask for cancellation of the counterbond on the ground that the attachment order was improperly issued, as the surety on the counterbond remains liable until the court absolves the defendant of the plaintiff's claims. The Court of Appeals' decision dismissing the petition for certiorari was therefore upheld.

    Copyright:

    Attribution Non-Commercial (BY-NC)
    Download as DOCX, PDF, TXT or read online from Scribd
    Flag for inappropriate content
    Download as docx, pdf, or txt
    of 2

    MINDANAO SAVINGS vs.CA G.R. No.

    84481 April 18, 1989

    FACTS:

    Private respondents filed in the RTC of Davao City, a complaint against defendants D.S. Homes, Inc., and its directors for
    "Rescission of Contract and Damages" with a prayer for the issuance of a writ of preliminary attachment.

    Judge Dinopol issued an order granting ex parte the application for a writ of preliminary attachment.

    Private respondents amended their complaint and filed a second amended complaint impleading as additional defendants
    herein petitioners Mindanao Savings and its president, Francisco Villamor, but dropping Eugenio M. De los Santos.

    Judge Dinopol issued ex parte an amended order of attachment against all the defendants named in the second amended
    complaint, including the petitioners but excluding Eugenio C. de los Santos.

    D. S. Homes. Inc., et al. and Mindanao Savings and Francisco Villamor filed separate motions to quash the writ of
    attachment. When their motions were denied by the Court, D.S. Homes, Inc., et al. offered a counterbond in the amount of
    Pl,752,861.41 per certificate issued by the Land Bank, a banking partner of petitioner Mindanao Savings. The lower court
    accepted the Land Bank Certificate of Deposit for Pl,752,861.41 as counterbond and lifted the writ of preliminary
    attachment.

    Mindanao Savings and Villamor filed in the CA a petition for certiorari to annul the order of attachment and the denial of
    their motion to quash the same. The petitioners alleged that the trial court acted in excess of its jurisdiction in issuing
    the ex parte orders of preliminary attachment and in denying their motion to quash the writ of attachment, D.S. Homes,
    Inc., et al. did not join them.

    CA dismissed the petition for certiorari and remanded the records to the RTC Davao City for expeditious proceedings. It
    held:

    Objections against the writ may no longer be invoked once a counterbond is filed for its lifting or dissolution.

    The grounds invoked for the issuance of the writ form the core of the complaint and it is right away obvious that a trial on the merits
    was necessary. The merits of a main action are not triable in a motion to discharge an attachment otherwise an applicant for
    dissolution could force a trial on the merits on his motion.

    Dissatisfied, the petitioners appealed to this Court.

    ISSUE: W/N the objections against the writ could still be invoked after filing of a counterbond. – NO!!!

    HELD:

    The only requisites for the issuance of a writ of preliminary attachment under Section 3, Rule 57 of the Rules of Court are
    the affidavit and bond of the applicant.

    SEC. 3. Affidavit and bond required .— An order of attachment shall be granted only when it is made to appear by 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 hereof,
    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 is granted above all legal counterclaims. The
    affidavit, and the bond required by the next succeeding section must be duly filed with the clerk or judge of the court before the order issues.

    No notice to the adverse party or hearing of the application is required. As a matter of fact a hearing would defeat the
    purpose of this provisional remedy. 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. Nevertheless, while no hearing is required by the
    Rules of Court for the issuance of an attachment, a motion to quash the writ may not be granted without "reasonable
    notice to the applicant" and only "after hearing".

    The Court of Appeals did not err in holding that objections to the impropriety or irregularity of the writ of attachment "may
    no longer be invoked once a counterbond is filed," when the ground for the issuance of the writ forms the core of the
    complaint.
    Indeed, after the defendant has obtained the discharge of the writ of attachment by filing a counterbond under Section 12,
    Rule 57 of the Rules of Court, he may not file another motion under Section 13, Rule 57 to quash the writ for impropriety
    or irregularity in issuing it.

    May the defendant, after procuring the dissolution of the attachment by filing a counterbond, ask for the cancellation of the
    counterbond on the ground that the order of attachment was improperly issued?

    "the obligors in the bond are absolutely liable for the amount of any judgment that the plaintiff may recover in the
    action without reference to the question of whether the attachment was rightfully or wrongfully issued."

    The liability of the surety on the counterbond subsists until the Court shall have finally absolved the defendant from the
    plaintiff s claims. Only then may the counterbond be released. The same rule applies to the plaintiffs attachment bond.
    "The liability of the surety on the bond subsists because the final reckoning is when the Court shall finally adjudge that the
    attaching creditor was not entitled to the issuance of the attachment writ."

    You might also like