EN BANC

[G.R. No. L-17797. November 29, 1963.]

ISABELO CARPIO, Petitioner, v. 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.

W . S. Fajardo & J . P. Cortez for Petitioner.

O. C . Baria & F . Manalo for Respondents.

SYLLABUS

1. ATTACHMENT; PRELIMINARY ATTACHMENT, GROUNDS; REMOVAL OF PROPERTY WITH INTENT TO

2. ID.; ID.; HEARING ON ISSUE OF FRAUDULENT DISPOSAL NECESSARY. — 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.

3. ID.; ID.; ORDER ISSUED ONLY WHEN PROPER AFFIDAVIT FILED. — 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.

DECISION

MAKALINTAL, J.:

Isabelo Carpio filed this petition for certiorari and prohibition to annul and stop implementation of
respondent Judge’s orders of October 24 and November 25, 1960, directing the sale of five race horses and
goods previously attached upon motion of respondent Oscar Abaya. We issued a writ of preliminary
injunction to restrain the sale, with instructions to respondent Sheriff of Rizal to allow the daily training of
the said horses and their participation in races whenever they were included in the racing programs. chanrob lesvi rtua llawlib ra ry

On January 17, 1960 respondent Oscar Abaya filed a complaint against petitioner for the recovery of various
sums aggregating P25,000 (Civil Case No. 42450, C.F.I. Manila). Before summons was served, and upon ex
parte motion of respondent Abaya (Annex B), respondent Judge issued two orders of attachment dated
February 8 (Annex C-1) and February 10, 1960 (Annex C), 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. On February 12, 1960 petitioner
filed an urgent petition to discharge the orders of attachment (Annex 1). Acting thereon, respondent Judge,
on March 11, 1960, set aside the two orders of February 8 and 10, 1960 (Annex F).

Upon two motions of respondent Abaya (Annexes H and I), respondent Judge, on March 29, 1960, set aside
his order of March 11, 1960 (Annex K). 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.

Upon petition of respondent Abaya (Annex L), respondent Judge issued an order directing the sale at public
auction of the five racing horses (Annex M). However, the sale was halted by petitioner’s putting up a bond
of P4,000 and the horses were released to him by respondent Sheriff of Rizal.

Upon motion of respondent Abaya (Annex R), respondent Judge, on October 24, 1960, ordered the increase
of the bond to P10,000, and ordered respondent Sheriff of Rizal to proceed with the sale of the horses
should petitioner failed to file the additional bond of P6,000 (Annex S). Motions filed by petitioner seeking
reconsideration of the said order of October 24 were denied by respondent Judge on November 25, 1960
(Annex X). So, respondent Sheriff of Rizal advertised the sale at public auction of the five racing horses.
Upon motion of respondent Abaya (Annex T), and despite the opposition of petitioner (Annex U), respondent
Judge, on the same day — November 25 issued an order authorizing the sale of the garnished goods (Annex
Z).

Petitioner seeks annulment of the order of October 24, 1960 ordering him to file an additional bond of
P6,000; the order of November 25, 1960 denying his motion for reconsideration of the order of October 24;
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.

Respondent Judge should not have issued the two writs of preliminary attachment (Annexes C and C-1) 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. 1 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. 2

Respondent Judge in fact corrected himself. Acting on petitioner’s motion to discharge attachment and
apparently believing the correctness of the grounds alleged therein, 3 he set aside the orders of attachment
(Order of March 11, 1960, Annex F).

But reversing himself again, he set aside his order of March 11, 1960 (Annex K, dated March 29, 1960. 4
This he did apparently on Abaya’s contention that petitioner was about to remove or dispose of his property
in order to defraud his creditors, as example of which disposals he pointed to the alleged sale of the horses
and of petitioner’s office furniture (Abaya’s motion for reconsideration dated March 15, 1960, Annex H).
These averments of fraudulent disposals were controverted by petitioner who, in his opposition to Abaya’s
motions for reconsideration (Annex J), reiterated the defenses against preliminary attachment which he had
previously enumerated in his petition to discharge the two orders of attachment. Thus the question of
fraudulent disposal was put in issue; and respondent Judge, before issuing the preliminary attachment
anew, 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. 5

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 Rules 59, Rules of
court, which states that"

"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."cralaw vi rtua 1aw lib rary

For the purposes of issuance of preliminary attachment, the affidavit (Annex B-1) attached to Abaya’s
motion therefor (Annex B), as we have said, is not sufficient, and it does not appear that he ever executed
another affidavit that complies with the above section. None appears attached either to his motion for
reconsideration dated March 15, 1960 (Annex H) or to his motion for reconsideration dated March 16, 1960
(Annex I), upon which the order of attachment (Annex K) was based.

Having construed that the preliminary attachment should not have been ordered, we believe it is no longer
necessary to discuss the subsequent actuations of respondent Judge which were all based on the erroneous
assumption that his order of March 29, 1960 was valid (Annex K).
WHEREFORE, the order of March 29, 1960 and all succeeding orders of respondent Judge with respect to
said preliminary attachment, are hereby declared null and void; the attached properties are ordered
released; and the preliminary injunction issued by this Court is made permanent. Costs against respondent
Abaya.chanroble svirtual lawlib rary

Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, Barrera, Paredes, Dizon and Regala, JJ., concur.