G.R. No.

L-4268 January 18, 1951

MANILA HERALD PUBLISHING CO., INC., doing business under the name of Evening Herald
Publishing Co., Inc., and Printers, Inc., petitioner,
vs.
SIMEON RAMOS, Judge of the Court of First Instance of Manila, MACARIO A. OFILADA,
Sheriff of City of Manila, ANTONIO QUIRINO and ALTO SURETY AND INSURANCE CO.,
INC., respondents.

Edmundo M. Reyes and Antonio Barredo for petitioners.

TUASON, J.:

This is a petition for "certiorari with preliminary injunction" arising upon the following antecedents:

Respondent Antonio Quirino filed a libel suit, docketed as civil case No. 11531, against Aproniano G.
Borres, Pedro Padilla and Loreto Pastor, editor, managing editor and reporter, respectively, of the
Daily Record, a daily newspaper published in Manila, asking damages aggregating P90,000. With
the filing of this suit, the plaintiff secureda writ of preliminary attachment upon putting up a P50,000
bond, and the Sheriff of the City of Manila levied an attachment upon certain office and printing
equipment found in the premises of the Daily Record.

Thereafter the Manila Herald Publishing Co. Inc. and Printers, Inc., filed with the sheriff separate
third-party claims, alleging that they were the owners of the property attached. Whereupon, the
sheriff required of Quirino a counter bound of P41,500 to meet the claim of the Manila Herald
Publishing Co., Inc., and another bond of P59,500 to meet the claim of Printers, Inc. These amounts,
upon Quirino's motion filed under Section 13, Rule 59, of the Rules of Court, were reduced by the
court to P11,000 and P10,000 respectively.

Unsuccessful in their attempt to quash the attachment, on October 7, 1950, the Manila Herald
Publishing Co., Inc. and Printers, Inc. commenced a joint suit against the sheriff, Quirino and Alto
Surety and Insurance Co. Inc., in which the former sought (1) to enjoin the defendants from
proceeding with the attachment of the properties above mentioned and (2) P45,000 damages. This
suit was docketed as civil case No. 12263.

Whereas case No. 11531 was being handled by Judge Sanchez or pending in the branch of the
Court presided by him, case No. 12263 fell in the branch of Judge Pecson. On the same date, in
virtue of an ex parte motion in case No. 12263 by the Manila Herald Publishing Co. Inc., and
Printers, Inc., Judge Pecson issued a writ of preliminary injunction to the sheriff directing him to
desist from proceeding with the attachment of the said properties.

After the issuance of that preliminary injunction, Antonio Quirino filed an ex parte petition for its
dissolution, and Judge Simeon Ramos, to whom case No. 12263 had in the meanwhile been
transferred, granted the petition on a bond of P21,000. However Judge Ramos soon set aside the
order just mentioned on a motion for reconsideration by the Manila Herald Publishing Co. Inc. and
Printer, Inc. and set the matter for hearing for October 14, then continued to October 16.

Upon the conclusion of that hearing, Judge Ramos required the parties to submit memoranda on the
question whether "the subject matter of civil case No. 12263 should be ventilated in an independent
action or by means of a complaint in intervention in civil case No. 11531." Memoranda having been
filed, His Honor declared that the suit, in case No. 12263, was "unnecessary, superfluous and illegal"
and so dismissed the same. He held that what Manila Herald Publishing Co., Inc., and Printers, Inc.,
should do was intervene in Case No. 11531.

The questions that emerge from these facts and the arguments are: Did Judge Ramos have
authority to dismiss case No. 12263 at the stage when it was thrown out of court? Should the Manila
Herald Publishing Co., Inc., and Printers, Inc., come as intervernors into the case for libel instead of
bringing an independent action? And did Judge Pecson or Judge Ramos have jurisdiction in case
No. 12263 to quash the attachment levied in case No. 11531?

In case No. 12263, it should be recalled, neither a motion to dismiss nor an answer had been made
when the decision under consideration was handed down. The matter then before the court was a
motion seeking a provisional or collateral remedy, connected with and incidental to the principal
action. It was a motion to dissolve the preliminary injunction granted by Judge Pecson restraining the
sheriff from proceeding with the attachment in case No. 11531. The question of dismissal was
suggested by Judge Ramos on a ground perceived by His Honor. To all intents and purposes, the
dismissal was decreed by the court on its own initiative.

Section 1 Rule 8 enumerates the grounds upon which an action may be dismissed, and it specifically
ordains that a motion to this end be filed. In the light of this express requirement we do not believe
that the court had power to dismiss the case without the requisite motion duly presented. The fact
that the parties filed memoranda upon the court's indication or order in which they discussed the
proposition that the action was unnecessary and was improperly brought outside and independently
of the case for libel did not supply deficiency. Rule 30 of the Rules of Court provides for the cases in
which an action may be dismissed, and the inclusion of those therein provided excludes any other,
under the familiar maxim, inclusio unius est exclusio alterius. The only instance in which, according
to said Rules, the court may dismiss upon the court's own motion an action is, when the "plaintiff fails
to appear at the time of the trial or to prosecute his action for an unreasonable length of time or to
comply with the Rules or any order of the court."

The Rules of Court are devised as a matter of necessity, intended to be observed with diligence by
the courts as well as by the parties for the orderly conduct of litigation and judicial business. In
general, it is compliance with these rules which gives the court jurisdiction to act.

We are the opinion that the court acted with grave abuse of discretion if not in excess of its
jurisdiction in dismissing the case without any formal motion to dismiss.

The foregoing conclusions should suffice to dispose of this proceeding for certiorari, but the parties
have discussed the second question and we propose to rule upon it if only to put out of the way a
probable cause for future controversy and consequent delay in the disposal of the main cause.

Section 14 of rule 59, which treats of the steps to betaken when property attached is claimed by the
other person than that defendant or his agent, contains the proviso that "Nothing herein contained
shall prevent such third person from vindicating his claim to the property by any proper action." What
is "proper action"? Section 1 of Rule 2 defines action as "an ordinary suit in court of justice, by which
one party prosecutes another for the enforcement or protection of a right, or the prevention or
redress of a wrong," while section 2, entitled "Commencement of Action," says that "civil action may
be commenced by filing a complaint with the court."

"Action" has acquired a well-define, technical meaning, and it is in this restricted sense that the word
"action" is used in the above rule. In employing the word "commencement" the rule clearly indicates
an action which originates an entire proceeding and puts in motion the instruments of the court
calling for summons, answer, etc, and not any intermediary step taken in the course of the
proceeding whether by the parties themselves or by a stranger. It would be strange indeed if the
framers of the Rules of Court or the Legislature should have employed the term "proper action"
instead of "intervention" or equivalent expression if the intention had been just that. It was all the
easier, simplier and the more natural to say intervention if that had been the purpose, since the
asserted right of the third-party claimant necessarily grows out of the pending suit, the suit in which
the order of attachment was issued.

The most liberal view that can be taken in favor of the respondents' position is that intervention as a
means of protecting the third-party claimants' right is not exclusive but cumulative and suppletory to
the right to bring a new, independent suit. It is significant that there are courts which go so far as to
take the view that even where the statute expressly grants the right of intervention is such cases as
this, the statute does not extend to owners of property attached, for, under this view, "it is considered
that the ownership is not one of the essential questions to be determined in the litigation between
plaintiff and defendant;" that "whether the property belongs to defendant or claimant, if determined,
is considered as shedding no light upon the question in controversy, namely, that defendant is
indebted to plaintiff."

(See 7 C. J. S., 545 and footnote No. 89 where extracts from the decision in Lewis vs. Lewis, 10 N.
W., 586, a leading case, are printed.)

Separate action was indeed said to be the correct and only procedure contemplated by Act No. 190,
intervention addition to, but not in substitution of, the old process. The new Rules adopted section
121 of Act No. 190 and added thereto Rule 24 (a) of the Federal Rules of Procedure. Combined, the
two modes of redress are now section 1 of Rule 13, 1 the last clause of which is the newly added
provision. The result is that, whereas, "under the old procedure, the third person could not intervene,
he having no interest in the debt (or damages) sued upon by the plaintiff," under the present Rules,
"a third person claiming to be the owner of such property may, not only file a third-party claim with
the sheriff, but also intervene in the action to ask that the writ of attachment be quashed." (I Moran's
Comments on the Rules of Court, 3rd Ed., 238, 239.) Yet, the right to inetervene, unlike the right to
bring a new action, is not absolute but left to the sound discretion of the court to allow. This
qualification makes intervention less preferable to an independent action from the standpoint of the
claimants, at least. Because availability of intervention depends upon the court in which Case No.
11531 is pending, there would be assurance for the herein petitioners that they would be permitted
to come into that case.

Little reflection should disabuse the mind from the assumption that an independent action creates a
multiplicity of suits. There can be no multiplicity of suits when the parties in the suit where the
attachment was levied are different from the parties in the new action, and so are the issues in the
two cases entirely different. In the circumstances, separate action might, indeed, be the more
convenient of the two competing modes of redress, in that intervention is more likely to inject
confusion into the issues between the parties in the case for debt or damages with which the third-
party claimant has nothing to do and thereby retard instead of facilitate the prompt dispatch of the
controversy which is underlying objective of the rules of pleading and practice. That is why
intervention is subject to the court's discretion.

The same reasons which impelled us to decide the second question, just discussed, urge us to take
cognizance of and express an opinion on the third.

The objection that at once suggests itself entertaining in Case No. 12263 the motion to discharge the
preliminary attachment levied in case No. 11531 is that by so doing one judge would intefere with
another judge's actuations. The objection is superficial and will not bear analysis.
It has been seen that a separate action by the third party who claims to be the owner of the property
attached is appropriate. If this is so, it must be admitted that the judge trying such action may render
judgment ordering the sheriff of whoever has in possession the attached property to deliver it to the
plaintiff-claimant or desist from seizing it. It follows further that the court may make an interlocutory
order, upon the filing of such bond as may be necessary, to release the property pending final
adjudication of the title. Jurisdiction over an action includes jurisdiction over a interlocutory matter
incidental to the cause and deemed necessary to preserve the subject matter of the suit or protect
the parties' interests. This is self-evident.

The fault with the respondents' argument is that it assumes that the Sheriff is holding the property in
question by order of the court handling the case for libel. In reality this is true only to limited extent.
That court did not direct the sheriff to attach the particular property in dispute. The order was for the
sheriff to attach Borres', Padilla's and Pastor's property. He was not supposed to touch any property
other than that of these defendants', and if he did, he acted beyond the limits of his authority and
upon his personal responsibility.

It is true of course that property in custody of the law can not be interferred with without the
permission of the proper court, and property legally attached is property in custodia legis. But for the
reason just stated, this rule is confined to cases where the property belongs to the defendant or one
in which the defendant has proprietary interest. When the sheriff acting beyond the bounds of his
office seizes a stranger's property, the rule does not apply and interference with his custody is not
interference with another court's order of attachment.

It may be argued that the third-party claim may be unfounded; but so may it be meritorious, for the
matter. Speculations are however beside the point. The title is the very issue in the case for the
recovery of property or the dissolution of the attachment, and pending final decision, the court may
enter any interlocutory order calculated to preserve the property in litigation and protect the parties'
rights and interests.

None of what has been said is to be construed as implying that the setting aside of the attachment
prayed for by the plaintiffs in Case No. 12263 should be granted. The preceding discussion is
intended merely to point out that the court has jurisdiction to act in the premises, not the way the
jurisdiction should be exercised. The granting or denial, as the case may be, of the prayer for the
dissolution of the attachment would be a proper subject of a new proceeding if the party adversely
affected should be dissatisfied.

The petition for certiorari is granted with costs against the respondents except the respondent
Judge.

Moran, C.J., Paras, Feria, Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo and Bautista Angelo,
JJ., concur.