Additional-prov.rem-cases-briefs.pdf

TOWERS ASSURANCE CORPORATION, petitioner, vs. ORORAMA SUPERMART, ITS OWNER-PROPRIETOR, SEE HONG and JUDGE BENJAMIN K. GOROSPE, Presiding Judge, Court of First Instance of Misamis Oriental, Branch I, respondents. G.R. No. L-45848 November 9,1977 DOCTRINE : Surety is entitled to be heard before an execution can be issued against him since he is not a party in the case involving his principal. Notice and hearing constitute the essence of procedural due process. - For a judgment creditor to recover from the surety on the counterbond, it is necessary (1) that execution be first issued against the principal debtor and that such execution was returned unsatisfied in whole or in part; (2) that the creditor made a demand upon the surety for the satisfaction of the judgment, and (3) that the surety be given notice and a summary hearing in the same action as to his liability for the judgment under his counterbond.- The first requisite is not if the surety assumed a solidary liability for the satisfaction of the judgment hence a surety is not entitled to the exhaustion of the properties of the principal debtor. FACTS : This case is about the liability of a surety in a counterbond for the lifting of a writ of preliminary attachment. See Hong, the proprietor of Ororama Supermart in Cagayan de Oro City, sued the spouses Ernesto Ong and Conching Ong in the CFI of Misamis Oriental for the collection of the sum of P 58,400. (Civil Case No. 4930). CFI of Misamis Oriental issued an Order of Attachment. The deputy sheriff attached the properties of the Ong spouses in Valencia, Bukidnon and in Cagayan de Oro City. Ong spouses filed a Counterbond in 'the amount of P 58,400 with Towers Assurance Corporation as surety to lift the attachment, whereby the Ong spouses and Towers Assurance Corporation bound themselves to pay solidarity to See Hong the sum of P 58,400. CFI of Misamis Oriental, ruled in favor of See Hong, ordering not only the Ong spouses but also their surety, Towers Assurance Corporation, to pay solidarily to See Hong the sum of P 58,400. The court also ordered the Ong spouses to pay P 10,000 as litigation expenses and attorney's fees. Then, CFI of Misamis Oriental issued the writ of execution against the judgment debtors and their surety. So, Towers Assurance Corporation filed this Petition for certiorari where it assails the decision and writ of execution. ISSUE : Whether or not CFI of Misamis Oriental acted with grave abuse of discretion in issuing a writ of execution against the surety ? HELD : Order and writ of execution are set aside. The lower court is directed to conduct a summary hearing on the surety's liability on its counterbound. YES, the CFI of Misamis Oriental acted with grave abuse of discretion in issuing a writ of execution against the surety without first giving it an opportunity to be heard as required in Rule 57 of the Rules of Court which provides: SEC. 17. When execution returned unsatisfied, recovery had upon bound. — If the execution be returned unsatisfied in whole or in part, the surety or sureties on any counterbound given pursuant to the provisions of this rule to secure the payment of the judgment shall become charged on such counterbound, and bound to pay to the judgment creditor upon demand, the amount due under the judgment, which amount may be recovered from such surety or sureties after notice and summary hearing in the same action.

For a judgment creditor to recover from the surety on the counterbond, it is necessary (1) that execution be first issued against the principal debtor and that such execution was returned unsatisfied in whole or in part; (2) that the creditor made a demand upon the surety for the satisfaction of the judgment, and (3) that the surety be given notice and a summary hearing in the same action as to his liability for the judgment under his counterbond. The first requisite is not applicable to this case because Towers Assurance Corporation assumed a solidary liability for the satisfaction of the judgment. A surety is not entitled to the exhaustion of the properties of the principal debtor. But, the surety is entitled to be heard before an execution can be issued against him since he is not a party in the case involving his principal. Notice and hearing constitute the essence of procedural due process. LEELIN, MARKETING CORPORATION, plaintiff-appellant, vs. C & S AGRO DEVELOPMENT COMPANY, MARIO SANTOS & AURELIO CARTANO, defendants, BELFAST SURETY & INSURANCE CO., INC., bondsman-appellee. G.R. No. L-38971,April 28, 1983 DOCTRINE : It is the claim for damages on account of illegal attachment that may be awarded only after the proper hearing and which shall be included in the final judgment. That claim must be filed before the trial or before appeal is perfected or before the judgment becomes executory, with due notice to the attaching creditor and his surety, pursuant to Section 20 of Rule 57 of the Rules of Court. FACTS : Plaintiff Leelin Marketing Corp. (LEELIN, for short) filed an action for a sum of money against defendants Mario Santos and Aurelio Cartano doing business under the name and style of C & S Agro Development Company before the CFI of

Camarines Sur. LEELIN procured a writ of preliminary attachment and by virtue of which the merchandise in the stores of defendants in Tabaco and Legazpi, Albay, one panel car and one sedan car were attached. But, upon presentation by defendants of a counterbond executed by Belfast Surety and Insurance Co., Inc., (the Surety, for brevity) in the amount of P20,000.00, and approved by the Trial Court, the attachment was dissolved. CFI of Camarines Sur, ruled ordering defendants:... to pay jointly and severally to the plaintiff, Leelin Marketing Corporation. A writ of execution was issued but the same was returned unsatisfied. So, LEELIN moved to charge the Surety on its counterbond. But, the Surety filed an opposition denying all liability for payment of the monetary judgment. Trial Court ruled that the Surety cannot be held liable for the judgment under the terms and conditions set forth in the bond. Ruling that, by virtue of Section 20, Rule 57, Revised Rules of Court, the plaintiff should have notified the surety (Belfast Surety & Insurance Co., Inc.) when it presented its evidence during the trial in the spirit of fairness and to comply with the strict requirements of due process. ISSUE : Whether or not the counterbond put up by a surety company for the discharge of an attachment is liable for the money judgment in favor of the judgment creditor? HELD : Order appealed from is reversed, and the Court of origin is hereby ordered to proceed with the execution against Belfast Surety and Insurance Co., Inc., to the extent of the amount of the counterbond, with costs against said surety company. YES, a counterbond put up by a surety company for the discharge of an attachment is liable for the money judgment in favor of the judgment creditor. Under Section 17 of Rule 57, in order that the judgment creditor may recover from the Surety on the counterbond, it is necessary (1) that execution be first issued against the principal debtor and that such execution was returned unsatisfied in whole or in part; (2). that the creditor made a demand upon the surety for the satisfaction of the judgment; and (3) the surety be given notice and a summary hearing in the same action as to his hability for the judgment under his counterbond. In the case at bar, LEELIN had substantially complied with the foregoing requisites. A writ of execution had been issued and had been returned unsatisfied. It had filed a motion to charge the Surety on its counterbond. A notice for the hearing of the motion had been served on the Surety and summary hearing was held. It is the claim for damages on account of illegal attachment that may be awarded only after the proper hearing and which shall be included in the final judgment. That claim must be filed before the trial or before appeal is perfected or before the judgment becomes executory, with due notice to the attaching creditor and his surety, pursuant to Section 20 of Rule 57 of the Rules of Court. Thus, Surety’s argument requiring notice of hearing before the finality of the judgment in regards the claim of damages have no applicability in the case at bar. The application by the Trial Court of Section 20, Rule 57, is likewise misplaced. It is the bond posted by the attaching creditor under Section 4, Rule 57, in an amount not exceeding its claim, that answers for costs and all damages which may be sustained by the adverse party by reason of the attachment, if the Court shall finally adjudge that the attaching creditor was not entitled thereto. On the other hand, a counterbond under Section 12 of Rule 57 of the Rules of Court is filed by the party whose property has been attached, equal to the value of the property attached, in order to secure the payment of any judgment that the attaching creditor may recover in the action. When execution against the principal debtor is returned unsatisfied, Section 17 of Rule 57 allows recovery upon the bond. K.O. GLASS CONSTRUCTION CO., INC., petitioner, vs. THE HONORABLE MANUEL VALENZUELA, Judge of the Court of First Instance of Rizal, and ANTONIO D. PINZON, respondents. G.R. No. L-48756 September 11, 1982 DOCTRINE : Issuance of the writ of preliminary attachment is requires allegation of intent to defraud his creditors, such, a mere allegation that the defendant is a foreigner will not suffice. - The affidavit for attachment must state that (a) sufficient cause of action exists, (b) the case is one of those mentioned in Section I (a) of Rule 57; (c) there is no other sufficient security 'or the claim sought to be enforced by the action, and (d) the amount due to the applicant for attachment 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. Failure to allege in the affidavit the requisites prescribed for the issuance of a writ of preliminary attachment, renders the writ of preliminary attachment issued against the property of the defendant fatally defective, and the judge

issuing it is deemed to have acted in excess of his jurisdiction. Upon receipt of the counter-bond the respondent Judge should have discharged the attachment. The filing of the counter-bond will serve the purpose of preserving the defendant's property and at the same time give the plaintiff security for any judgment that may be obtained against the defendant. FACTS : Antonio D. Pinzon filed an action in the CFI of Rizal, to recover from Kenneth O. Glass the sum of P37,190.00, alleged to be the agreed rentals of his truck, as well as the value of spare parts which have not been returned to him upon termination of the lease. Plaintiff asked for an attachment against the property of the defendant consisting of collectibles and payables with the Philippine Geothermal, Inc., on the grounds that the defendant is a foreigner; that he has sufficient cause of action against the said defendant; and that there is no sufficient security for his claim against the defendant in the event a judgment is rendered in his favor. Respondent Judge ordered the issuance of a writ of attachment against the properties of the defendant. Defendant Kenneth O. Glass moved to quash the writ of attachment. Defendants therein filed a supplementary motion to discharge and/or dissolve the writ of preliminary attachment upon the ground that the affidavit filed in support of the motion for preliminary attachment was not sufficient because the affidavit did not state that there is no other sufficient security for the claim sought to be recovered by the action as also required by said Sec. 3; and the affidavit did not specify any of the grounds enumerated in Sec. 1 of Rule 57. Respondent Judge denied the motion and ordered the Philippine Geothermal, Inc. to deliver and deposit with the Clerk of Court the amount of P37,190.00 immediately upon receipt of the order which amount shall remain so deposited to await the judgment to be rendered in the case. Defendants therein filed a bond in the amount of P37,190.00 and asked the court for the release of the same amount deposited with the Clerk of Court. But, Respondent Judge did not order the release of the money deposited. Hence, this Petition for certiorari to annul and set aside the writ of preliminary attachment issued by the respondent Judge in Civil Case No. 5902-P of the Court of First Instance of Rizal, and for the release of the amount of P37,190.00, which had been deposited with the Clerk of Court, to the petitioner. ISSUE : Whether or not respondent Judge gravely abused his discretion in issuing the writ of preliminary attachment and in not ordering the release of the money which had been deposited with the Clerk of Court ? HELD : Petition is GRANTED; Orders issued by the respondent Judge are hereby ANNULLED and SET ASIDE and the respondents are hereby ordered to forthwith release the garnished amount of P37,190.00 to the petitioner. YES, the respondent Judge gravely abused his discretion in issuing the writ of preliminary attachment and in not ordering the release of the money which had been deposited with the Clerk of Court for the following reasons: First, there was no ground for the issuance of the writ of preliminary attachment. Pinzon however, did not allege that the defendant Kenneth O. Glass "is a foreigner (who) may, at any time, depart from the Philippines with intent to defraud his creditors including the plaintiff." He merely stated that the defendant Kenneth O. Glass is a foreigner.There being no showing, much less an allegation, that the defendants are about to depart from the Philippines with intent to defraud their creditor, or that they are non-resident aliens, the attachment of their properties is not justified. Second, the affidavit submitted by Pinzon does not comply with the Rules. Under the Rules, an affidavit for attachment must state that (a) sufficient cause of action exists, (b) the case is one of those mentioned in Section I (a) of Rule 57; (c) there is no other sufficient security 'or the claim sought to be enforced by the action, and (d) the amount due to the applicant for attachment 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. While Pinzon may have stated in his affidavit that a sufficient cause of action exists against the defendant Kenneth O. Glass, he did not state therein 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 is as much as the sum for which the order granted above all legal counter-claims." Failure to allege in the affidavit the requisites prescribed for the issuance of a writ of preliminary attachment, renders the writ of preliminary attachment issued against the property of the defendant fatally defective, and the judge issuing it is deemed to have acted in excess of his jurisdiction. Finally, it appears that the petitioner has filed a counterbond in the amount of P37,190.00 to answer for any judgment that may be rendered against the defendant. Upon receipt of the counter-bond the respondent Judge should have discharged the attachment pursuant to Section 12, Rule 57 of the Revised Rules of Court. The filing of the counter-bond will serve the purpose

of preserving the defendant's property and at the same time give the plaintiff security for any judgment that may be obtained against the defendant. MERCEDES GRUENBERG and ALBERT GRUENBERG, petitioners, vs. HONORABLE COURT OF APPEALS, HONORABLE LINO L. AÑOVER and ELDA R. FLORES, respondents. G. R. No. L-45948, September 10, 1985 DOCTRINE : A writ of attachment is a remedy ancillary to the principal proceeding. Writ of attachment necessary to secure the judgment must be related to the protection of the estate. The writ may not issue if only to protect the personal interests of the private respondent as a creditor of that estate. The rules on the issuance of a writ of attachment must be construed strictly in favor of the defendant. The remedy of attachment is harsh, extraordinary, and summary in nature. If all the requisites for the issuance of the writ are not present, the court which issues it acts in excess of its jurisdiction. FACTS : Petitioners are the defendants and private respondent is the plaintiff. There was a house and lot, which were sold to defendant Albert Gruenberg (one of the petitioners). Plaintiff contends that this house and lot form part of the conjugal partnership of the Gruenberg spouses, which must answer for the obligations that deceased William Gruenberg might have incurred during his lifetime in his capacity as manager and administrator of the conjugal partnership. Private respondent-plaintiff ELDA R. FLORES filed the complaint (Civil Case No. Q18444) in her capacity as the administratrix of the intestate estate of the late William Gruenberg in the CFI of Rizal, for annulment of sale, recovery of ownership and possession of the house and lot, the same, allegedly, having been sold in fraud of creditors. Private respondent filed a 'Motion for Issuance of Writ of Preliminary Attachment' against the properties of petitioners, alleging, among others, that the latter are indebted to her in the principal amount of P13,000.00, which, according to her, she seeks to recover in Civil Case No. Q-18444. Respondent Judge granted the motion of private respondent and issuing a writ of preliminary attachment against the properties of petitioners. Respondent Sheriff and/or his deputies served on petitioners and the managers of the Hollywood Theater, Palace Theater and Illusion Theatre a writ of preliminary attachment and notice of garnishment against petitioners and personally in favor of respondent Flores. CA affirmed the order for the issuance of a writ of preliminary attachment. Hence, the instant Petition to review the decision of the CA which affirmed the order for the issuance of a writ of preliminary attachment, and other related orders of the then Court of First Instance of Rizal in Civil Case No. Q-18444. ISSUE :

Whether or not the writ of preliminary attachment have been improvidently issued ?

HELD : Petition is GRANTED; Decision of CA is SET ASIDE; Writ of preliminary attachment and the notice of garnishment are DISSOLVED. YES, the writ of preliminary attachment have been improvidently issued. While the respondent filed the motion in her capacity as administratrix of the Gruenberg estate, the motion for a writ of attachment and its supporting affidavit show that the attachment was intended to secure only her P13,000.00 claim against the estate. Obviously, this cannot be done. A writ of attachment is a remedy ancillary to the principal proceeding. The purpose behind the filing of the complaint was to recover a piece of property allegedly belonging to the intestate estate of the deceased. Hence, any writ of attachment necessary to secure the judgment must be related to the protection of the estate. The writ may not issue if only to protect the personal interests of the private respondent as a creditor of that estate. Allowing the private respondent in the annulment case to attach the petitioners' properties for the benefit of her P13,000.00 claim against the estate would give her an undue advantage over other creditors against the estate. The rules on the issuance of a writ of attachment must be construed strictly in favor of the defendant. The remedy of attachment is harsh, extraordinary, and summary in nature. If all the requisites for the issuance of the writ are not present, the court which issues it acts in excess of its jurisdiction. We also note that the order which directed the issuance of a writ of preliminary attachment merely recited the grounds alleged in the private respondent's motion without any specific details as to the supposed fraud committed by the petitioners when they contracted the debt and the alleged disposition or concealment by the petitioners of their properties. The order of the trial court disregards the rule that attachment being a harsh remedy, it must be issued on concrete and specific grounds and not on general averments merely quoting the words of the pertinent rules. The absence of specific grounds highlights the fact

that the petitioners are not indebted to respondent Flores. It was the late William Gruenberg who incurred the alleged indebtedness and it is his estate which owes Flores.