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    MINDANAO SAVINGS V CA

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    Elaizza Concepcion
    The defendant cannot ask for cancellation of a counterbond filed to dissolve a writ of attachment on the grounds that the attachment order was improperly issued. After filing a counterbond, the defendant may no longer object to improprieties in the writ. The liability on the counterbond remains until the court absolves the defendant of the plaintiff's claims in the final judgment.

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    MINDANAO SAVINGS V CA

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    Elaizza Concepcion
    103 views1 page
    The defendant cannot ask for cancellation of a counterbond filed to dissolve a writ of attachment on the grounds that the attachment order was improperly issued. After filing a counterbond, the defendant may no longer object to improprieties in the writ. The liability on the counterbond remains until the court absolves the defendant of the plaintiff's claims in the final judgment.

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    MINDANAO SAVINGS v CA

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    The defendant cannot ask for cancellation of a counterbond filed to dissolve a writ of attachment on the grounds that the attachment order was improperly issued. After filing a counterbond, the defendant may no longer object to improprieties in the writ. The liability on the counterbond remains until the court absolves the defendant of the plaintiff's claims in the final judgment.

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    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    103 views1 page

    MINDANAO SAVINGS V CA

    Uploaded by

    Elaizza Concepcion
    The defendant cannot ask for cancellation of a counterbond filed to dissolve a writ of attachment on the grounds that the attachment order was improperly issued. After filing a counterbond, the defendant may no longer object to improprieties in the writ. The liability on the counterbond remains until the court absolves the defendant of the plaintiff's claims in the final judgment.

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    of 1

    property before a writ of attachment issues.

    Nevertheless, while no
    MINDANAO SAVINGS v CA hearing is required by the Rules of Court for the issuance of an
    G.R. No. 84481   |      April 18, 1989 attachment (Belisle Investment & Finance Co., Inc. vs. State
    Investment House, Inc., 72927, June 30, 1987; Filinvest Credit Corp.
    vs. Relova, 11 7 SCRA 420), a motion to quash the writ may not be
    granted without "reasonable notice to the applicant" and only "after
    hearing" (Secs. 12 and 13, Rule 57, Rules of Court).
    FACTS: The Mercados, private respondents filed in the Regional Trial
    Court of Davao City, a complaint against defendants D.S. Homes, Inc.,
    and its directors, Laurentino G. Cuevas, Saturnino R. Petalcorin, Engr. The Court of Appeals did not err in holding that objections to the
    Uldarico D. Dumdum, Aurora P. De Leon, Ramon D. Basa, Francisco impropriety or irregularity of the writ of attachment "may no longer be
    D. Villamor, Richard F. Magallanes, Geronimo S. Palermo Felicisima invoked once a counterbond is filed," when the ground for the issuance
    V. Ramos and Eugenio M. De los Santos (hereinafter referred to as of the writ forms the core of the complaint.
    D.S. Homes, et al.) for "Rescission of Contract and Damages" with a
    prayer for the issuance of a writ of preliminary attachment. Indeed, after the defendant has obtained the discharge of the writ of
    attachment by filing a counterbond under Section 12, Rule 57 of the
    Judge Dinopol issued an order granting ex parte the application for a Rules of Court, he may not file another motion under Section 13, Rule
    writ of preliminary attachment. 57 to quash the writ for impropriety or irregularity in issuing it.

    The private respondents amended their complaint and on October 10, The reason is simple. The writ had already been quashed by filing a
    1986, filed a second amended complaint impleading as additional counterbond, hence, another motion to quash it would be pointless.
    defendants herein petitioners Davao Savings & Loan Association, Inc. Moreover, as the Court of Appeals correctly observed, when the
    and its president, Francisco Villamor, but dropping Eugenio M. De los ground for the issuance of the writ is also the core of the complaint, the
    Santos. question of whether the plaintiff was entitled to the writ can only be
    determined after, not before, a full-blown trial on the merits of the case.
    On November 5, 1986, Judge Dinopol issued ex parte an amended This accords with our ruling G.B. Inc. vs. Sanchez, 98 Phil. 886 that:
    order of attachment to reflect said amendments. "The merits of a main action are not triable in a motion to discharge an
    attachment, otherwise an applicant for the dissolution could force a trial
    on the merits of the case on this motion."
    D. S. Homes. Inc., et al. and the Davao Savings & Loan Association
    (later renamed Mindanao Savings & Loan Association, Inc. or "MSLA")
    and Francisco Villamor filed separate motions to quash the writ of May the defendant, after procuring the dissolution of the attachment by
    attachment which were denied. D.S. Homes, Inc., et al. thus offered a filing a counterbond, ask for the cancellation of the counterbond on the
    counterbond which was accepted resulting in the lifting of the writ of ground that the order of attachment was improperly issued? That
    preliminary attachment. question was answered by this Court when it ruled in Uy Kimpang vs.
    Javier, 65 Phil. 170, that "the obligors in the bond are absolutely liable
    for the amount of any judgment that the plaintiff may recover in the
    On July 29, 1987, MSLA and Villamor filed in the Court of Appeals a action without reference to the question of whether the attachment was
    petition for certiorari to annul the order of attachment and the denial of rightfully or wrongfully issued."
    their motion to quash the same. The petitioners alleged that the trial
    court acted in excess of its jurisdiction. The Court of Appeals
    dismissed the petition for certiorari. The liability of the surety on the counterbond subsists until the Court
    shall have finally absolved the defendant from the plaintiff s claims.
    Only then may the counterbond be released. The same rule applies to
    ISSUE: May the defendant, after procuring the dissolution of the the plaintiffs attachment bond. "The liability of the surety on the
    attachment by filing a counterbond, ask for the cancellation of the bond subsists because the final reckoning is when the Court
    counterbond on the ground that the order of attachment was improperly shall finally adjudge that the attaching creditor was not entitled to the
    issued? issuance of the attachment writ," (Calderon vs. Intermediate Appellate
    Court, 155 SCRA 531.)
    RULING: NO.

    The only requisites for the issuance of a writ of preliminary attachment


    under Section 3, Rule 57 of the Rules of Court are the affidavit and
    bond of the applicant.

    SEC. 3. Affidavit and bond required .— An order of


    attachment shall be granted only when it is made
    to appear by the affidavit of the applicant, 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 applicant, or the value
    of the. property the possession of which he is
    entitled to recover, is as much as the sum for
    which the order is granted above all legal
    counterclaims. The 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.

    No notice to the adverse party or hearing of the application is required.


    As a matter of fact a hearing would defeat the purpose of this
    provisional remedy. The time which such a hearing would take, could
    be enough to enable the defendant to abscond or dispose of his

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