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Rule 57 – Notes (Case Doctrines)

Davao Light & Power Co., Inc. vs. Court of Appeals

*Preliminary attachment may be validly applied for and

granted before defendant is summoned or is heard
from.
-Rule 57 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. What the rule is saying
quite clearly is that after an action is properly
commenced by the filing of the complaint and the
payment of all requisite docket and other fees the
plaintiff may apply for and obtain a writ of preliminary
attachment upon 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 been the immemorial
practice sanctioned by the courts: for the plaintiff or
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other proper party to incorporate the application for

attachment in the complaint or other appropriate
pleading (counterclaim, 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.

*Writs of attachment may properly issue ex parte.

-writs of attachment may properly issue ex parte
provided that the Court is satisfied that the relevant
requisites therefor 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.

Adlawan vs. Tomol

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*Writ of Attachment Definition:

-A writ of preliminary attachment is 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.
-The provisional remedy of attachment is available in
order that the defendant may not dispose of his property
attached, and thus secure the satisfaction of any
judgment that may be secured by plaintiff from
defendant.

*Two-fold purpose and function of an attachment or

garnishment:
First, it seizes upon property of an alleged debtor in
advance of final judgment and holds it subject to
appropriation thus prevents the loss or dissipation of the
property by fraud or otherwise.
Second, it subjects to the payment of a creditor’s claim
property of the debtor in those cases where personal
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service cannot be obtained upon the debtor. This remedy

is to secure a contingent lien on defendant’s property
until plaintiff can, by appropriate proceedings, obtain a
judgment and have such property applied to its
satisfaction, or to make some provision for unsecured
debts in cases where the means of satisfaction thereof
are liable to be removed beyond the jurisdiction, or
improperly disposed of or concealed, or otherwise placed
beyond the reach of creditors.

*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.

Rizal Commercial Banking Corporation vs. De Castro

*Republic Act. No. 2265 created the PVTA as an ordinary

corporation with all the attributes of a corporate entity
subject to the provisions of the Corporation Law. Hence,
it possesses the power “to sue and be sued” and “to
acquire and hold such assets and incur such liabilities
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resulting directly from operations authorized by the

provisions of this Act or as essential to the proper
conduct of such operations.”

PVTA funds are not government funds and therefore

can be garnished
-PVTA has been endowed with a personality distinct and
separate from the government which owns and controls
it. Accordingly, the funds of the PVTA can be garnished
since “funds of public corporations which can sue and be
sued were not exempt from garnishment”.

Mangila vs CA
*A party to a suit may, at any time after filing the
complaint, avail of the provisional remedies under the
Rules of Court, and, specifically, Rule 57 on preliminary
attachment speaks of the grant of the remedy “at the
commencement of the action or at any time
thereafter.”
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-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. This distinction is
crucial in resolving whether there is merit in petitioner’s
argument. This Court has long settled the issue of when
jurisdiction over the person of the defendant should be
acquired in cases where a party resorts to provisional
remedies. A party to a suit may, at any time after filing
the complaint, avail of the provisional remedies under
the Rules of Court. Specifically, Rule 57 on preliminary
attachment speaks of the grant of the remedy “at the
commencement of the action or at any time thereafter.”
This phrase refers to the date of filing of the complaint
which is the moment that marks “the commencement of
the action.” The reference plainly is to a time before
summons is served on the defendant, or even before
summons issues.
*3 Stages of the grant of the provisional remedy of
attachment:
First, the court issues the order granting the application;
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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 be first
obtained. However, once the implementation of the writ
commences, 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.

*If the defendant’s whereabouts could not be

ascertained after the sheriff had served the summons at
her given address, then plaintiff should immediately ask
the court for service of summons by publication on the
defendant.
—The rules provide for certain remedies in cases where
personal service could not be effected on a party. Section
14, Rule 14 of the Rules of Court provides that whenever
the defendant’s “whereabouts are unknown and cannot
be ascertained by diligent inquiry, service may, by leave
of court, be effected upon him by publication in a
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newspaper of general circulation x x x.” Thus, if

petitioner’s whereabouts could not be ascertained after
the sheriff had served the summons at her given address,
then respondent could have immediately asked the court
for service of summons by publication on petitioner.
Moreover, as private respondent also claims that
petitioner was abroad at the time of the service of
summons, this made petitioner a resident who is
temporarily out of the country. This is the exact situation
contemplated in Section 16, Rule 14 of the Rules of Civil
Procedure, providing for service of summons by
publication.

An alias summons belatedly served on a defendant

cannot be deemed to cure the fatal defect in the
enforcement of the writ of preliminary attachment.
-The trial court cannot enforce such a publication as
warranted by the circumstances of the case. The
subsequent service of summons does not confer a
retroactive acquisition of jurisdiction over her person
because the law does not allow for retroactivity of a
belated service.
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The Rules of Court provide that parties to an action may

agree in writing on the venue on which an action should
be brought. However, a mere stipulation on the venue
of an action is not enough to preclude parties from
bringing a case in other venues. The parties must be
able to show that such stipulation is exclusive. Thus,
absent words that show the parties’ intention to restrict
the filing of a suit in a particular place, courts will allow
the filing of a case in any venue, as long as jurisdictional
requirements are followed. Venue stipulations in a
contract, while considered valid and enforceable, do not
as a rule supersede the general rule set forth in Rule 4 of
the Revised Rules of Court. In the absence of qualifying
or restrictive words, they should be considered merely as
an agreement on additional forum, not as limiting venue
to the specified place.
*A sole proprietorship does not have a separate
juridical personality that could enable it to file a suit in
court—there is no law authorizing sole proprietorships
to file a suit in court. Thus, it is the residence of the
proprietor which should be considered as one of the
proper venues, not the business address of the sole
proprietorship.
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*The objective of the rules on venue to insure a just and

orderly administration of justice or the impartial and
evenhanded determination of every action and
proceeding will not be attained if the plaintiff is given
unrestricted freedom to choose where to file the
complaint or petition.

Valdevieso vs Damalerio

*A levy on attachment, duly registered, takes

preference over a prior unregistered sale. This result is a
necessary consequence of the fact that the property
involved was duly covered by the Torrens system which
works under the fundamental principle that registration
is the operative act which gives validity to the transfer or
creates a lien upon the land. The preference created by
the levy on attachment is not diminished even by the
subsequent registration of the prior sale. This is so
because an attachment is a proceeding in rem. It is
against the particular property, enforceable against the
whole world. The attaching creditor acquires a specific
lien on the attached property which nothing can
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subsequently destroy except the very dissolution of the

attachment or levy itself. Such a proceeding, in effect,
means that the property attached is an indebted thing
and a virtual condemnation of it to pay the owner’s debt.
The lien continues until the debt is paid, or sale is had
under execution issued on the judgment, or until the
judgment is satisfied, or the attachment discharged or
vacated in some manner provided by law.

*The Supreme Court, while aware of its equity

jurisdiction, is first and foremost, a court of law. While
equity might tilt on the side of one party, the same
cannot be enforced so as to overrule positive provisions
of law in favor of the other. Equity cannot supplant or
contravene the law. The rule must stand no matter how
harsh it may seem. Dura lex sed lex.

PCL Industries vs CA
*To sustain an attachment, it must be shown that the
debtor in contracting the debt or incurring the
obligation intended to defraud the creditor.
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-The fraud must relate to the execution of the agreement

and must have been the reason which induced the other
party into giving consent which he would not have
otherwise given. To constitute a ground for attachment
in Section 1 (d), Rule 57 of the Rules of Court, fraud
should be committed upon contracting the obligation
sued upon. A debt is fraudulently contracted if at the
time of contracting it the debtor has a preconceived plan
or intention not to pay.
-Fraud is a state of mind and need not be proved by
direct evidence but may be inferred from the
circumstances attendant in each case.
-The bare allegations in the applicant’s affidavit, are
insufficient to prove that petitioner was guilty of fraud in
contracting the debt or incurring the obligation. The
mere fact that petitioner failed to pay its purchases upon
falling due and despite several demands made by private
respondent, is not enough to warrant the issuance of the
harsh provisional remedy of preliminary attachment.
Spouses Tanchan vs Allied Banking
*General averment will not suffice to support the
issuance of the writ of preliminary attachment. It is
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necessary to recite in what particular manner an

applicant for the writ of attachment was defrauded.

*The mere fact that respondent is an officer and

director of the company does not necessarily give rise
to the inference that he committed a fraud or that he
connived with the other defendants to commit a fraud.
- The affidavit, being the foundation of the writ, must
contain such particulars as to how the fraud imputed to
respondent was committed for the court to decide
whether or not to issue the writ. Absent any statement
of other factual circumstances to show that respondent,
at the time of contracting the obligation, had a
preconceived plan or intention not to pay, or without any
showing of how respondent committed the alleged
fraud, the general averment in the affidavit that
respondent is an officer and director of the company
who allegedly connived with the other defendants to
commit a fraud, is insufficient to support the issuance of
a writ of preliminary attachment.
*The rules require that for the writ to issue, there must
be a recitation of clear and concrete factual
circumstances manifesting that the debtor practiced
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fraud upon the creditor at the time of the execution of

their agreement in that said debtor had a pre-conceived
plan or intention not to pay the creditor; Being a state
of mind, fraud cannot be merely inferred from a bare
allegation of non-payment of debt or non-performance
of obligation.
*There must be evidence clear and convincing that the
officer committed a fraud or connived with the
corporation to commit a fraud; only then may the
properties of said officer, along with those of the
corporation, be held under a writ of preliminary
attachment.
*A surety’s involvement is marginal to the principal
agreement between the defendant and the plaintiff;
hence, in order for the surety to be subject to a
proceeding for issuance of a writ of preliminary
attachment, it must be shown that said surety
participated in or facilitated the fraudulent practice of
the defendant, such as by offering a security solely to
induce the plaintiff to enter into the agreement with
the defendant.
*A wrongful attachment may give rise to liability for
moral damages but evidence must be adduced not only
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of the torment and humiliation brought upon the

defendant by the attaching party but also of the latter’s
bad faith or malice in causing the wrongful attachment.

Carpio vs. Macadaeg

*Mere removal or disposal of property, by itself, is not

ground for issuance of preliminary attachment,
notwithstanding absence of any security for the
satisfaction of any judgment against the defendant. The
removal or disposal, to justify preliminary attachment,
must have been made with intent to defraud
defendant’s creditors.
*Where the question of fraudulent disposal was put in
issue, the respondent Judge, before issuing the
preliminary attachment should have given the parties
opportunity to prove their respective claims or, at the
very least, should have provided petitioner with the
chance to show that he had not been disposing of his
property in fraud of creditors.
*Respondent Judge should not have ordered the
issuance of the writ of preliminary attachment since the
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respondent plaintiff never made any affidavit as

required by Rule 59, Rules of Court, the affidavit
attached to his motion not being sufficient and it does
not appear that he ever executed another affidavit that
complies with said Section 59.

Tay Chun Suy vs. Court of Appeals

*No grave abuse of discretion can be ascribed to the
judge for issuing a writ of attachment ex parte as there
is nothing in the Rules of Court that conditions such
issuance on prior notice and hearing.
*While it is true that property in the custody of the law
may not be interfered with without the permission of
the proper court, this rule is confined to cases where
the property belongs to the defendant or where the
defendant has proprietary interests. We have held that
when the sheriff, acting beyond the bounds of his
office, seizes a stranger’s property, the rule does not
apply and interference with his custody is not
considered interference with another court’s order of
attachment.
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*Under Section 17 of Rule 39, a third person who claims

property levied upon to implement a judgment may
vindicate such claim by action. Obviously, a decision
declaring him to be the owner of the property would
not constitute interference with the power or processes
of the court that rendered the judgment sought to be
enforced. If that be so, and it is so because property
belonging to a stranger is not subject to levy, then an
interlocutory order such as an injunction, based upon a
claim and prima facie showing of ownership by the
claimant, cannot be considered interference.
*In a separate action filed by a third party who claims to
be the owner of the property attached, the court may
render judgment ordering the sheriff or whoever is in
possession of the attached property to deliver it to the
plaintiff or desist from seizing it. In such action, the
court may issue an interlocutory order, upon the filing
of such bond as may be necessary, to release the
property pending final adjudication of the title.
Jurisdiction over an action includes jurisdiction on
interlocutory matters incidental to the cause and
deemed necessary to preserve the subject matter of the
suit or protect the parties’ interest.
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*An indispensable party is one with such an interest in

the controversy that a final decree would necessarily
affect his rights, such that the courts cannot proceed
without his presence. Unquestionably, any judgment
covering the disposition of the vessel would
unavoidably affect the petitioner as its purchaser at the
auction sale.