CASE DIGEST - CUARTERO V. COURT OF APPEALS

 CUARTERO V. COURT OF APPEALS

G.R. No. 102448

05 August 1992

Gutierrez, Jr., J.:

Facts:

Ricardo Cuartero files a complaint for a sum of money plus damages with a prayer for the issuance of a writ of preliminary attachment against Evangelista spouses before the Regional Trial Court. The RTC granted the petitioner’s prayer ex-parte. Thus, a writ of preliminary attachment was issued. On the same day, the  summons for the spouses were  prepared. The following day, a copy of the writ of preliminary attachment, the order, and the summons and the complaint were all simultaneously served upon  the spouses’ residence. Thereafter, the sheriff levied, attached and pulled out the properties in compliance with the court's directive to attach all the properties of private respondents not exempt from execution, or so much thereof as may be sufficient to satisfy the petitioner's principal claim.

This prompted the spouses to move to set aside the court’s order and discharge the writ of preliminary attachment for having been irregularly and improperly issued. However, the RTC denied the same. Thus, spouses filed a special civil action for Certiorari with the Court of Appeals and granted the same. Hence, the petition.

Issue:

Whether the writ of preliminary was regularly or properly issued.

Ruling:

The writ of preliminary attachment can be applied for and granted at the commencement of the action or at any time thereafter (Section 1, Rule 57, Rules of Court). In Davao Light and Power, Co., Inc. v. Court of Appeals, supra, the phrase "at the commencement of the action" is interpreted as referring to the date of the filing of the complaint which is a time before summons is served on the defendant or even before summons issues. The Court added that —

. . . after an action is properly commenced — 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. And this, indeed, has been the immemorial practice sanctioned by the courts: for the plaintiff or 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.

The Court also pointed out that:

. . . 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 defendant's person. The obtention by the court of jurisdiction over the person of the defendant is one thing; quite another is the acquisition of jurisdiction over the person of the plaintiff or over the subject matter or nature of the action, or the res or object thereof.

It is clear from our pronouncements that a writ of preliminary attachment may issue even before summons was served upon the defendant. However, we have likewise ruled that the writ cannot bind and affect the defendant. However, we have likewise ruled that the writ cannot bind and affect the defendant until jurisdiction over his person is eventually obtained. Therefore, it is required that when the proper officer commences implementation of the writ of attachment, service of summons should be simultaneously made.

Moreover, an attachment may not be dissolved by a showing of its irregular or improper issuance if it is upon a ground which is at the same time the applicant's cause of action in the main case since an anomalous situation would result if the issues of the main case would be ventilated and resolved in a mere hearing of a motion (Davao Light and Power Co., Inc. v. Court of Appeals, supra, The Consolidated Bank and Trust Corp. (Solidbank) v. Court of Appeals, 197 SCRA 663 [1991]).