(Prov Rem) No. 3 and 4 Case

TAN VS.
ZANDUETA AND TIU CHAY

61 PHIL., 526 , JUNE 15, 1935
Facts
Tan Lit and Tan Kia won 50k in a sweepstakes. However, Tan Lit kept thewhole amount to
himself. Thus, Kia filed a recovery suit for the 22.5k. After filing a 5kbond, Kia obtained an
attachment from the Judge. Tan Lit later managed to have the writ dissolved by posting a
counter-bond of 5k. After the attachment was dissolved, he withdrew 23,500 from PNB (most
this amount was previously attached).After an application by Kia, the judge again issued another
order requiring Tan Lit to pay an additional 12k counterbond. Failing to do this, Tan Lit was held
incontempt and was held in confinement until he posted the 12k. Tan Lit now argues that :1the
preliminary attachment was irregular and illegal
Issue WON the preliminary attachment was irregular and illegal
Ruling
The writ of preliminary attachment in this case was issued in strict conformity to the law,
because the complaint wherein it was issued alleged that the petitioner after collecting the prize
of a ticket in the last sweepstakes, consisting of the amount of P50,000, belonging to the two,
that is, the petitioner and the respondent T. C. (alias T. K.) appropriated the entire prize
exclusively for himself, in complete disregard of said T. C. (alias T. K.) knowing that one-half
thereof did not belong to him but to said respondent; that he was merely a depository or agent of
the latter as to said half, and that the petitioner acted in the manner stated notwithstanding the
fact that he was required to turn over to the respondent the part of the prize won corresponding to
the latter. The allegations to this effect are found in paragraphs 6, 7, 8, and 9 of the complaint of
said T. C.
FILINVEST vs. RELOVA
117 SCRA 420
FACTS
On August 2, 1977,
Filinvest Credit
Corporation (hereinafter
referred to as FILINVEST)
filed a
complaint in the lower
court against defendants
Rallye Motor Co., Inc.
(hereinafter referred to as
RALLYE) and Emesto
Salazar for the collection
of a sum of money with
damages and
preliminary writ of
attachment.
Praying for a writ of
preliminary attachment,
FILINVEST submitted with
its complaint the affidavit
of one Gil Mananghaya.
Judge Jorge R. Coquia
(now Justice of the Court
of Appeals), then
presiding Judge of the
lower
court, granted the prayer
for a writ of attachmen.
More than a year later, in
an Urgent Motion dated
December 11, 1978,
4
defendant Salazar
prayed that the writ of
preliminary attachment
issued ex parte and
implemented solely
against
his property be recalled
and/or quashed. He
argued that when he
signed the promissory
note
and chattel mortgage on
May 5, 1977 in favor of
RALLYE, FILINVEST was
not yet his creditor
or obligee, therefore, he
could not be said to have
committed fraud when he
contracted the
obligation on May 5,
1977. Salazar added that
as the motor vehicle
which was the object of
the
chattel mortgage and the
consideration for the
promissory note had
admittedly not been
delivered to him by
RALLYE, his repudiation of
the loan and mortgage is
more justifiable.
FILINVEST filed an
Opposition, but on
February 2, 1979, the
court a quo, this time
presided
over by herein
respondent Judge,
ordered the dissolution
and setting aside of the
writ of
issued on August 17,
1977 and the return to
defendant Salazar of all
his
properties attached by
the Sheriff by virtue of
the said writ.
Petioner filed a Motion for
Reconsideration, but it
was denied.
On August 2, 1977,
Filinvest Credit
Corporation (hereinafter
referred to as FILINVEST)
filed a
complaint in the lower
court against defendants
Rallye Motor Co., Inc.
(hereinafter referred to as
RALLYE) and Emesto
Salazar for the collection
of a sum of money with
damages and
preliminary writ of
attachment.
Praying for a writ of
preliminary attachment,
FILINVEST submitted with
its complaint the affidavit
of one Gil Mananghaya.
Judge Jorge R. Coquia
(now Justice of the Court
of Appeals), then
presiding Judge of the
lower
court, granted the prayer
for a writ of attachmen.
More than a year later, in
an Urgent Motion dated
December 11, 1978,
4
defendant Salazar
prayed that the writ of
issued ex parte and
implemented solely
against
his property be recalled
and/or quashed. He
argued that when he
signed the promissory
note
and chattel mortgage on
May 5, 1977 in favor of
RALLYE, FILINVEST was
not yet his creditor
or obligee, therefore, he
could not be said to have
committed fraud when he
contracted the
obligation on May 5,
1977. Salazar added that
as the motor vehicle
which was the object of
the
chattel mortgage and the
consideration for the
promissory note had
admittedly not been
delivered to him by
RALLYE, his repudiation of
the loan and mortgage is
more justifiable.
FILINVEST filed an
Opposition, but on
February 2, 1979, the
court a quo, this time
presided
over by herein
respondent Judge,
ordered the dissolution
and setting aside of the
writ of
issued on August 17,
1977 and the return to
defendant Salazar of all
his
properties attached by
the Sheriff by virtue of
the said writ.
Petioner filed a Motion for
Reconsideration, but it
was denied.
Filinvest Credit Corporation filed a complaint in the lower court against defendants Rallye Motor
Corp and Ernesto Salazar for the collection of a sum of money with damages and writ of
preliminary attachment. Praying for a writ of preliminary attachment, Filinvest submitted with its
complaint the affidavit of one Gil Managhaya. The presiding judge granted the prayer for a writ
of attachment. Thereafter Defendant Salazar prayed that the writ of preliminary attachment
issued ex parte and implemented solely against his property be recalled and or quashed. He
argued that when he signed the promissory note and chattel mortgage in favour of Rallye,
Filinvest was not yet his creditor or obligee, therefore he could not be said to have been
committed fraud when he contracted the obligation. Salazar added that as the motor vehicle
which was the object of the chattel mortgage and the consideration for the promissory note had
admittedly not been delivered to him by Rallye. Filinvest filed an opposition.
ISSUE
Won the writ of Preliminary Attachment was improperly or irregularly issued for being issued
ex-parte without notice to him and proper hearing
RULING
No. We do not agree with the contention of private respondent. Nothing in the Rules of Court
makes notice and hearing indispensable and mandatory requisites for the issuance of a writ of
attachment. As clarified in the separate opinion of Mr. Justice Claudio Teehankee, a writ of
attachment may be issued ex parte. Sections 3 and 4, Rule 57, merely require that an applicant
for an order of attachment file an affidavit and a bond: the affidavit to be executed by the
applicant himself or some other person who personally knows the facts and to show that (1) there
is a sufficient cause of action, (2) the case is one of those mentioned in Section 1 of Rule 57, (3)
there is no other sufficient security for the claim sought to be enforced, and (4) the amount
claimed in the action is as much as the sum for which the order is granted above all legal
counterclaims; and the bond to be "executed to the adverse party in an amount fixed by the
judge, not exceeding the applicant's claim, conditioned that the latter will pay all the costs which
may be adjudged to the adverse party and all damages which he may sustain by reason of the
attachment, if the court shall finally adjudge that the applicant was not entitled thereto.

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TAN VS.

ZANDUETA AND TIU CHAY

Issue WON the preliminary attachment was irregular and illegal

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