G.R. No.

L-67715 July 11, 1986

WILLIAM ALAIN MIAILHE and THE HON. FELIX V. BARBERS, in his capacity as Presiding
Judge, RTC of Manila, Branch XXXIII, petitioners-appellants,
vs.
ELAINE M. DE LENCQUESAING and HERVE DE LENCQUESAING, respondents-appellees.

PARAS, J.:

This petition is an appeal by certiorari from the Decision of the Intermediate Appellate Court in AC-
G.R. SP. No. 01914 which declared null-and void, the Order of the Hon. Judge Felix V. Barbers,
issued in Civil Case No. 83-16829, dated April 14, 1983, granting petitioner's application for the
issuance of a writ of preliminary attachment and the Order dated September 13, 1983 denying
respondent's motion to lift said attachment.

The pertinent facts that gave rise to the instant petition are as follows: Petitioner William Alain
Miailhe, his sisters Monique Miailhe Sichere, Elaine Miailhe de Lencquesaing and their mother,
Madame Victoria D. Miailhe are co-owners of several registered real properties located in Metro
Manila. By common consent of the said co-owners, petitioner William Alain has been administering
said properties since 1960. As Madame Victoria D. Miailhe, her daughter Monique and son William
Alain (herein petitioner) failed to secure an out-of court partition thereof due to the unwillingness or
opposition of respondent Elaine, they filed in the Court of First Instance of Manila (now Regional
Trial Court) an action for Partition, which was docketed as Civil Case No. 105774 and assigned to
Branch . . . thereof, presided over by Judge Pedro Ramirez. Among the issues presented in the
partition case was the matter of petitioner's account as administrator of the properties sought to be
partitioned. But while the said administrator's account was still being examined, respondent Elaine
filed a motion praying that the sum of P203,167.36 which allegedly appeared as a cash balance in
her favor as of December 31, 1982, be ordered delivered to her by petitioner William Alain. Against
the opposition of petitioner and the other co-owners, Judge Pedro Ramirez granted the motion in his
Order dated December 19, 1983 which order is now the subject of a certiorari proceeding in the
Intermediate Appellate Court under AC-G.R. No. SP-03070.

Meanwhile however, and more specifically on February 28, 1983, respondent Elaine filed a criminal
complaint for estafa against petitioner William Alain, with the office of the City Fiscal of Manila,
alleging in her supporting affidavit that on the face of the very account submitted by him as
Administrator, he had misappropriated considerable amounts, which should have been turned over
to her as her share in the net rentals of the common properties. Two days after filing the complaint,
respondent flew back to Paris, the City of her residence. Likewise, a few days after the filing of the
criminal complaint, an extensive news item about it appeared prominently in the Bulletin Today,
March 4, 1983 issue, stating substantially that Alain Miailhe, a consul of the Philippines in the
Republic of France, had been charged with Estafa of several million pesos by his own sister with the
office of the City Fiscal of Manila.

On April 12, 1983, petitioner Alain filed a verified complaint against respondent Elaine, for Damages
in the amount of P2,000,000.00 and attorney's fees of P250,000.00 allegedly sustained by him by
reason of the filing by respondent (then defendant) of a criminal complaint for estafa, solely for the
purpose of embarrassing petitioner (then plaintiff) and besmirching his honor and reputation as a
private person and as an Honorary Consul of the Republic of the Philippine's in the City of Bordeaux,
France. Petitioner further charged respondent with having caused the publication in the March 4,
1983 issue of the Bulletin Today, of a libelous news item. In his verified complaint, petitioner prayed
for the issuance of a writ of preliminary attachment of the properties of respondent consisting of 1/6
undivided interests in certain real properties in the City of Manila on the ground that "respondent-
defendant is a non-resident of the Philippines", pursuant to paragraph (f), Section 1, Rule 57, in
relation to Section 17, Rule 14 of the Revised Rules of Court.

This case for Damages was docketed as Civil Case No. 83-16829 of the Regional Trial Court of
Manila, Branch XXXIII presided over by the Honorable Felix V. Barbers.

On April 14, 1983, Judge Barbers granted petitioner's application for preliminary attachment upon a
bond to be filed by petitioner in the amount of P2,000,000.00. Petitioner filed said bond and upon its
approval, the Writ of Preliminary Attachment was issued on April 18, 1983 which was served on the
Deputy Clerk of Court of Branch XXX before whom the action for Partition was pending.

On May 17, 1983, respondent thru counsel filed a motion to lift or dissolve the writ of attachment on
the ground that the complaint did not comply with the provisions of Sec. 3 of Rule 57, Rules of Court
and that petitioner's claim was for unliquidated damages. The motion to lift attachment having been
denied, respondent filed with the Intermediate Appellate Court a special action for certiorari under
AC-G.R. SP No. 01914 alleging that Judge Barbers had acted with grave abuse of discretion in the
premises. On April 4, 1984, the IAC issued its now assailed Decision declaring null and void the
aforesaid Writ of preliminary attachment. Petitioner filed a motion for the reconsideration of the
Decision but it was denied hence, this present petition which was given due course in the Resolution
of this Court dated February 6, 1985.

We find the petition meritless. The most important issue raised by petitioner is whether or not the
Intermediate Appellate Court erred in construing Section 1 par. (f) Rule 57 of the Rules of Court to
be applicable only in case the claim of the plaintiff is for liquidated damages (and therefore not
where he seeks to recover unliquidated damages arising from a crime or tort).

In its now assailed decision, the IAC stated —

We find, therefore, and so hold that respondent court had exceeded its jurisdiction in
issuing the writ of attachment on a claim based on an action for damages arising
from delict and quasi delict the amount of which is uncertain and had not been
reduced to judgment just because the defendant is not a resident of the Philippines.
Because of the uncertainty of the amount of plaintiff's claim it cannot be said that
said claim is over and above all legal counterclaims that defendant may have against
plaintiff, one of the indispensable requirements for the issuance of a writ of
attachment which should be stated in the affidavit of applicant as required in Sec. 3
of Rule 57 or alleged in the verified complaint of plaintiff. The attachment issued in
the case was therefore null and void.

We agree.

Section 1 of Rule 57 of the Rules of Court provides —

SEC. 1. Grounds upon which attachment may issue. A plaintiff or any proper party
may, at the commencement of the action or at any time thereafter, have the property
of the adverse party attached as security for the satisfaction of any judgment that
may be recovered in the following cases:

(a) In an action for the recovery of money or damages on a cause of action arising
fromcontract, express or implied, against a party who is about to depart from the
Philippines with intent to defraud his creditors;
 (b) In an action for money or property embezzled or fraudulently misapplied or
converted to his own use by a public officer, or an officer of a corporation or an
attorney, factor, broker, agent, or clerk, in the course of his employment as such, or
by any other person in a fiduciary capacity, or for a willful violation of duty;

(c) In an action to recover the possession of personal property unjustly detained,

(d) In an action against a party who has been guilty of a fraud in contracting the debt
or incurring the obligation upon which the action is brought, or in concealing or
disposing of the property for the taking, detention or conversion of which the action is
brought;

(e) In an action against a party who has removed or disposed of his property, or is
about to do so, with intent to defraud his creditors;

(f) In an action against a party who resides out of the Philippines, or on whom
summons may be served by publication. (emphasis supplied)

While it is true that from the aforequoted provision attachment may issue "in an action against a
party who resides out of the Philippines, " irrespective of the nature of the action or suit, and while it
is also true that in the case of Cu Unjieng, et al vs. Albert, 58 Phil. 495, it was held that "each of the
six grounds treated ante is independent of the others," still it is imperative that the amount sought be
liquidated.

In view of the foregoing, the Decision appealed from is hereby AFFIRMED.

SO ORDERED.