Preliminary Attachment

Case #9

Isabelo Carpio, petitioner, vs. Hon. Higinio Macadaeg, as presiding Judge of Branch X, Court of First
Instance of Manila; OSCAR C. ABAYA, Provincial Sheriff of Rizal and City Sheriff of Manila, respondents.
(G.R. No. L-17797. November 29, 1963)

DOCTRINE:

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
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.

FACTS:

1. A petition for certiorari and prohibition to annul and stop implementation of respondent Judge's
orders was filed by Carpio, directing the sale of five race horses and goods previously attached
upon motion of respondent Abaya and the court issued a writ of preliminary injunction to
restrain the sale, with instructions to allow the daily training of the said horses and their
participation in races whenever they were included in the racing programs.
2. Oscar Abaya filed a complaint against petitioner for the recovery of various sums and before
summons was served, and upon ex parte motion of respondent Abaya, respondent Judge issued
two orders of attachment pursuant to which the Sheriff of Manila garnished goods consisting of
hardware imported by petitioner, and the Sheriff of Rizal seized petitioner's five racing horses
named Mohamad, Mohamad's Pride, Magic Spell, Nashua and Sirius.
3. Petitioner filed an urgent petition to discharge the orders of attachment wherein the respondent
Judge set aside the two orders and upon two motions of respondent Abaya, respondent Judge
set aside his order. Though no new petition was filed for issuance of a writ of attachment and no
new order or alias writ of attachment was issued, respondent Sheriff of Manila garnished the
aforementioned goods and respondent Sheriff of Rizal attached the five racing horses.
4. Upon petition of respondent Abaya, respondent Judge issued an order directing the sale at public
auction of the five racing horses, however, the sale was halted by petitioner's putting up a bond
and the horses were released to him by respondent Sheriff of Rizal.
5. Upon motion of Abaya, respondent Judge ordered the increase of the bond and ordered
respondent Sheriff of Rizal to proceed with the sale of the horses should petitioner failed to file
the additional bond and upon denial of motion for reconsideration, petitioner sought the
annulment of the order, ordering him to file an additional bond; the order of denying his motion
for reconsideration; and the order of the same date authorizing the sale of the garnished goods,
on the ground that in issuing them respondent Judge acted without jurisdiction and/or with
grave abuse of discretion.
ISSUE: W/N respondent Judge's orders directing the sale of five race horses and goods previously
attached upon motion of respondent Oscar Abaya was proper.

RULING:

No. The court declared it null and void; the attached properties were ordered released.

Respondent Judge should not have issued the two writs of preliminary attachment on Abaya's simple
allegation that the petitioner was about to dispose of his property, thereby leaving no security for the
satisfaction of any judgment.

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. But for much more than the above reason, respondent Judge should not have again
ordered the issuance of the writ of preliminary attachment since Abaya never made any affidavit as
required by Rule 59, Rules of Court, which states that:

a. SEC. 3. Order issued only when affidavit and bond filed — An order of attachment shall be
granted when it is made to appear by the affidavit of the plaintiff, or of some other person who
personally knows the facts, that a sufficient cause of action exists, 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 plaintiff, or the value of the property
which he is entitled to recover the possession of, is as much as the sum for which the order is
granted above all legal counterclaims; which affidavit, and the bond required by the next
succeeding section, must be duly filed with the clerk or judge of the court before the order
issues.

For the purposes of issuance of preliminary attachment, the affidavit attached to Abaya's motion
therefore is not sufficient, and it does not appear that he ever executed another affidavit that complies
with the above section.

Having construed that the preliminary attachment should not have been ordered, it is no longer necessary
to discuss the subsequent actuations of respondent Judge which were all based on the erroneous
assumption that his order was valid.