Topic: Stages of Attachment and Contemporaneous Service of Summons
Torres vs Nicanor Satsatin and children
Facts:
This is a case for collection of sum of money. Petitioners are siblings who each own adjacent tract of land covered by TCTs. Their mother was enticed by
respondent to sell their respective lands and authorized him to negotiate the sale of the properties. Subsequently the respondent offered to sell the properties
to Solar who agreed to purchase the subject lands then he remitted the amount in partial but along the way failed to remit the rest thus leaving a balance to
the petitioners.
Petitioners:
Such nonpayment lead the petitioners to file an ex parte motion for the issuance of the writ of the preliminary attachment alleging respondents are about to
depart the Philippines; that they have both real and personal properties in the country; and that there is no other sufficient security for the said claim. They
even posted a bond and requested for deputation of Sheriff.
On appeal to SC, they claim that the writ can only be dissolved by filing a counter-bond which the respondents are not allowed to do so because it would
tantamount to a trial on the merits.
Regional Trial Court:
Granted the motion (November 15, 2002) hence the court ordered the sheriff to attach the estate, real or personal of the respondents not exempt from
execution. A copy of the writ of attachment was subsequently served (November 19) upon the respondents and on the same day, the sheriff levied the
properties (household appliances, cars and parcel of lands). On November 21, summons, together with the copy of the complaint was served upon the
respondents.
Respondents:
Filed a motion to discharge the writ because the bond was issued before the issuance of the writ; the writ was issued before the summons was received by
them; the sheriff did not serve copies of the application for attachment, order of attachment, plaintiffs' affidavit, and attachment bond, to the respondents; the
sheriff did not submit a sheriff's return in violation of the Rules; and that the bond issued in favor of the petitioners was defective, because the bonding
company failed to obtain the proper clearance that it can transact business with the RTC hence they offered to post a counter-bond for the lifting of the writ
of attachment. In sum, they claim that the writ was improper and irregular having been issued and enforced without the lower court acquiring jurisdiction
over the persons of the respondents. They maintained that the writ of attachment was implemented without serving upon them the summons together with
the complaint.
Regional Trial Court:
Denied the motion but directed the respondents to post a counter-bond.
Court of Appeals:
Favored the respondents and rued that the RTC gravely abused its discretion.
Issue:
Whether or not the lifting/discharge of the writ by the CA was proper?
SUPREME COURT:
YES.
Ratio:
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 that might be secured
in the said action by the attaching creditor against the defendant.
Further, in acquiring jurisdiction there is a distinction between the issuance and implementation of the writ:
Issuance-The provisional remedy can be availed of at the commencement of the action or before entry of judgment. This refers to the date of filing of the
complaint with reference to a time before summons is served or even before summons issues.
Implementation- jurisdiction is acquired over the defendant by service of summons or other coercive process or his voluntary submission to the court’s
authority. Hence when the sheriff or other proper officer commences implementation of the writ of attachment, it is essential that he serve on the defendant
not only a copy of the applicant's affidavit and attachment bond, and of the order of attachment but also the summons addressed to said defendant as well as
a copy of the complaint.
Stages of attachment:
1) Court issues order granting the application;
2) Writ is pursuant to the order granting the writ; and
3) Writ is implemented.
NB: In the first two, no need to acquire jurisdiction first but the third one, jurisdiction is required otherwise any action will not bind the defendant.
In this case, there has been grave abuse of discretion in approving the bond posted by petitioners because of noncompliance of all the requisites. In accepting
surety bond, every bond should be accompanied by a clearance from the Supreme Court showing that the company concerned is qualified to transact business
which is valid only for thirty (30) days from the date of its issuance. In this case, the RTC was not one of the RTCs were said bond can be accepted.
Also, the writ was issued on November 15, implemented on November 19 but the summons was served was served only on November 21. Therefore, the court
did not validly acquire jurisdiction as to the implementation of the wit.
Discharge of the writ:
1) Filing a counter-bond; OR
2) Quash the attachment on the ground that it was irregularly or improperly issued.
Lastly, the preliminary writ of attachment must be served after or simultaneous with the service of summons on the defendant whether by personal service,
substituted service or by publication. The subsequent service of summons does not confer a retroactive acquisition of jurisdiction over the person because
the law does not allow for retroactivity of a belated service.
