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SECOND DIVISION

G.R. No. L-46009 May 14, 1979

RICARDO T. SALAS and MARIA SALAS, Petitioners, vs. HON. MIDPANTAO L. ADIL, as Judge of Branch II, Court of First Instance of Iloilo, ROSITA BEDRO and BENITA YU, Respondents.

ANTONIO, J.:

Certiorari to nullify the Order of Attachment of May 13, 1977, as well as the Writ of Attachment dated May 16, 1977, issued by respondent Judge in Civil Case No. 10770 of the Court of First Instance of Iloilo, entitled "Rosita Bedro and Benita Yu v. Spouses Ricardo T. Salas and Maria Salas, et al.

On September 10, 1976, respondents Rosita Bedro and Benita Yu filed the afore-mentioned civil action with the Court of First Instance of Iloilo against herein petitioners Ricardo T. Salas and Maria Salas, the Philippine Commercial & Industrial Bank, in its capacity as Administrator of the Testate Estate of the deceased Charles Newton Hodges, and Avelina A. Magno, in her capacity as Administratrix of the Testate Estate of the deceased Linnie Jane Hodge to annul the deed of sale of Lot No. 5 executed by administrators of the Hodges Estate in favor of the Spouses Ricardo T. Salas and Maria Salas and for damages. The action for annulment was predicated upon the averment that Lot No. 5, being a subdivision road, is intend for public use and cannot be sold or disposed of by the Hodges Estate. The claim for damages was based on the assertion that after defendant spouses purchased Lots Nos. 2 and 3, they also purchased Lot No. 5 and thereafter "erected wooden posts, laid and plastered at the door of the house on Lot No. 3, with braces of hardwood, lumber and plywood nailed to the post", thereby preventing Rosita Bedro and Benita Yu from using the road on the afore-mentioned lot, Lot No. 5, and that as a result of such obstruction, private respondents Rosita Bedro and Benita Yu sustained actual damages in the amount of P114,000.00, plus the sum of Pl,000.00 as damages daily from June 30, 1976 due to the stoppage in the construction of their commercial buildings on Lot No. 3, and moral damages in the amount of P200,000.00.chanroblesvirtualawlibrary chanrobles virtual law library

In their answer to the complaint, the Salas spouses, after specifically denying the material allegations in the complaint, stated that Lot No. 5 had been registered in the name of the C. N. Hodges as their exclusive private property and was never subjected to any servitude or easement of right of way in favor of any person; that any occupants of Lots Nos. 2 and 3 have direct access to Bonifacio Drive, a National Highway, hence, Lot No. 5 is neither needed nor required for the egress or ingress of the occupants thereof; and that private respondents, as a matter of fact, since 1964 had excluded and separated completely their property (Lots Nos. 2 and 3) from Lot No. 5 by building a concrete wall on the boundary thereon without providing any gate as entrance or exit towards Lot No. 5; and that private respondents have no personality to question the validity of the deed of sale over Lot No. 5 since they were not parties to the same and the sale was duly approved by the probate court.chanroblesvirtualawlibrary chanrobles virtual law library

In a motion dated May 12, 1977, private respondents filed a Motion for Attachment, alleging, among others, that the case was "for annulment of a deed of sale and recovery of damages" and that the defendants have removed or disposed of their properties or are about to do so with intent to defraud their creditors especially the plaintiffs in this case.chanroblesvirtualawlibrary chanrobles virtual law library

On May 13, 1977, respondent Judge issued ex-parte a Writ of Attachment "against the properties of the defendants particularly Lots Nos. 1 and 4 of Psc-2157 less the building standing thereon upon the plaintiffs filing a bond in the amount of P200,000.00 subject to the approval of this Court." After a surety bond in the amount of P200,000.00, executed on May 11, 1977 by the Central Surety and Insurance Company as surety was filed, the writ itself was issued by respondent Judge on May 16, 1977, directing the Sheriff to attach the properties above-mentioned. On May 17, 1977, the Deputy Sheriff of Iloilo levied upon the aforesaid properties of petitioners.chanroblesvirtualawlibrary chanrobles virtual law library

Contending that respondent Judge gravely abused his discretion in issuing the said Writ of Attachment, petitioners filed the present petition.chanroblesvirtualawlibrary chanrobles virtual law library

In certiorari proceedings, the cardinal rule is that the court must be given the opportunity to correct itself, Thus, for the special civil action of certiorari to prosper, there must be no appeal nor any plain, speedy and adequate remedy in the ordinary course of law. Petitioners, therefore, must exhaust all available remedies in the lower court before filing a petition for certiorari, otherwise the petition shall be held to be premature.chanroblesvirtualawlibrary chanrobles virtual law library

In the instant case, it appears that petitioners have adequate remedy under the law. They could have filed an application with the court a quo for the discharge of the attachment for improper or irregular issuance under section 13, Rule 57, of the Revised Rules of Court, which provides the following

SEC. 13. Discharge of attachment for improper or irregular issuance. - The party whose property has been attached may also, at any time either before or after the release of the attached property, or before any attachment shall have been actually levied, upon reasonable notice to the attaching creditor, apply to the judge who Salas vs. Adil granted the order, or to the judge of the court in which the action is pending, for an order to discharge the attachment on the ground that the same was improperly or irregularly issued. If the motion be made on affidavits on the part of the party whose property has been attached, but not otherwise, the attaching creditor may oppose the same by counter-affidavits or other evidence in addition to that on which the attachment was made. After hearing, the judge shall order the discharge of the attachment if it appears that it was improperly or irregularly issued and the defect is not cured forthwith.

Considering that petitioners have not availed of this remedy, the instant petition is premature.chanroblesvirtualawlibrary chanrobles virtual law library

We deem it necessary, however, for the guidance of respondent Court and of the parties, to stress herein the nature of attachment as an extraordinary provisional remedy.chanroblesvirtualawlibrary chanrobles virtual law library

A preliminary attachment is a rigorous remedy, which exposes the debtor to humiliation and annoyance, such it should not be abused as to cause unnecessary prejudice. It is, therefore, the duty of the court, before issuing the writ, to ensure that all the requisites of the law have been complied with; otherwise the judge acts in excess of his jurisdiction and the so issued shall be null and void . ¹chanrobles virtual law library

In Carpio v. Macadaeg, ² this Court said:

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. 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.chanroblesvirtualawlibrary chanrobles virtual law library

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

But reversing himself again, he set aside his order of March 11, 1960 (Annex K, dated March 29, 1960). 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 examples of which disposals he pointed to the alleged sale of the horses and of petitioner's office furniture. ... These averments of fraudulent disposals were controverted by petitioner who ... 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 pre 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. (citing National Coconut Corporation v. Pecson L-4296, Feb. 25, 1952, Villongco v. Panlilio, 6214, Nov. 20, 1953).

And in Garcia v. Reyes, ³ considering the allegation that the debtors were removing or disposing of some of their properties with intent to defraud their creditors, 'this Court said that "(a)ll in all due process would seem to require that both parties further ventilate their respective contentions in a hearing that could indeed reveal the truth. Fairness would be served thereby, the demand of reason satisfied." chanrobles virtual law library

Considering the gravity of the allegation that herein petitioners have removed or disposed of their properties or are about to do so with intent to defraud their creditors, and further considering that the affidavit in support of the pre attachment merely states such ground in general terms, without specific allegations of lances to show the reason why plaintiffs believe that defendants are disposing of their properties in fraud of creditors, it was incumbent upon respondent Judge to give notice to petitioners and to allow wherein evidence is them to present their position at a to be received. Moreover, it appears from the records that private respondents are claiming unliquidated damages, including moral damages, from petitioners. The authorities agree that the writ of attachment is not available 'm a suit for damages where the amount claimed is contingent or unliquidated.

We think, however, that a rule sufficient for the determination of this case has been suggested and acted upon, and that the remedy does not exist where unliquidated damages were demanded. ... In Warwick v. Chase, 23 Md 161, it is said: 'It is necessary that the standard for ascertaining the amount of damages claimed should not only appear, but that it should be fixed and certain, and in no degree dependent on facts either speculative or Uncertain ... The general rule is, that unliquidated damages, ... cannot be recovered by attachment, unless the contract affords a certain measure or standard for ascertaining the amount of the damages ... ⁴

Further.

The statute authorizing the issuance of the writ of garnishment and that relating to the issuance of the writ of attachment ... have not been construed as authorizing the writs to be issued when the plaintiff's suit is technically an action for debt. Neither of the writs may be issued when the suit is for damages for tort, but they may be issued when the plaintiff's claim arises out of contract either express or implied, and the demand is liquidated, that is, the amount of the claim is not contingent, is capable of being definitely ascertained by the usual means of evidence, and does not rest in the discretion of the jury. ⁵chanrobles virtual law library

WHEREFORE, the instant petition is hereby DENIED, in order to enable petitioners to move before respondent Court for the discharge of the attachment on the ground of its improper and irregular issuance, pursuant to section 13, Rule 57, of the Revised Rules of Court, and for the aforesaid Court to act thereon in accordance with the foregoing.

Endnotes:

1 Guzman v.Catolico, No. 45720, December 29, 1937, 65 Phil. 257, 261.chanrobles virtual law library

2 L-17797, November 29, 1963, SCRA 552, 554 -556.chanrobles virtual law library

3 L-27419, October 3l, 1969, SO SCRA 162, 171.chanrobles virtual law library

4 Hochstadder et al., v. Sam 11, SW 408-409.chanrobles virtual law library

5 Cleveland v. San Antonio Building and Loan Association 223 SW 2d 226, 228.