Monday, June 2, 2008

Preliminary Attachment Quizzer

Q: ABC Corporation filed a complaint for a sum of money with a prayer for the immediate issuance of a writ of attachment against X. Immediately thereafter, the judge issued an order granting the issuance of a writ of attachment without acquiring jurisdiction over X.

Is the writ of attachment valid?

A: Yes.

It is well-settled that a writ of preliminary attachment may be validly applied for and granted even before the defendant is summoned or is heard from.

A preliminary attachment may be defined as the provisional remedy in virtue of which a plaintiff or other proper party may, at the commencement of the action or any time thereafter, have the property of the adverse party taken into the custody of the court as security for the satisfaction of any judgment that may be recovered. It is a remedy which is purely statutory in respect of which the law requires a strict construction of the provisions granting it. Withal no principle, statutory or jurisprudential, prohibits its issuance by any court before acquisition of jurisdiction over the person of the defendant.

Rule 57 in fact speaks of the grant of the remedy "at the commencement of the action or at any time thereafter." The phrase "at the commencement of the action," obviously refers to the date of the filing of the complaint; and the reference plainly is to a time before summons is served on the defendant or even before summons issues. What the rule is saying quite clearly is that after an action is properly commenced by the filing of the complaint and the payment of all requisite docket and other fees, the plaintiff may apply for and obtain a writ of preliminary attachment upon fulfillment of the pertinent requisites laid down by law, and that he may do so at any time, either before or after service of summons on the defendant. And this indeed, has been the immemorial practice sanctioned by the courts: for the plaintiff or other proper party to incorporate the application for attachment in the complaint or other appropriate pleading (counterclaim, cross-claim, third-party claim) and for the Trial Court to issue the writ ex-parte at the commencement of the action if it finds the application otherwise sufficient in form and substance.

Case: OƱate v. Abrogar, G.R. No. 107303, February 21, 1994

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