Provisional Remedy: Rule 57. Writ of Attachment Flashcards
Remedial Law 2018 IIIa
On February 3, 2018, Danny Delucia, Sheriff of the RTC of Makati, served the Order granting the ex-parte application for preliminary attachment of Dinggoy against Dodong. The Order, together with the writ, was duly received by Dodong. On March 1, 2018, the Sheriff served upon Dodong the complaint and summons in connection with the same case. The counsel of Dodong filed a motion to dissolve the writ.
(a) Can the preliminary attachment issued by the Court in favor of Dinggoy be dissolved? What ground/s can Dodong’s counsel invoke?
Yes, the preliminary attachment issued by the court in favor of Dinggoy can be dissolved, because the enforcement thereof was improper.
In Torres, et al., vs. Satsatin (GR 166759, November 25, 2009), the Supreme Court ruled that once the implementation of a writ of preliminary attachment commences, the court must have acquired jurisdiction over the defendant, for without such jurisdiction, the court has no power and authority to act in any manner against the defendant. Consequently, any order issuing from the Court will not bind the defendant. It is, thus, indispensable not only for the acquisition of jurisdiction over the person of the defendant, but also upon consideration of fairness, to apprise the defendant of the complaint against him and the issuance of a writ of preliminary attachment and the grounds therefore that prior or contemporaneously to the serving of the writ of attachment, service of summons, together with a copy of the complaint, the application for attachment, the applicant’s affidavit and bond, and the order must be served upon him.
In this case, since copies of the complaint and summons were served after the writ of preliminary attachment was served upon Dodong, the writ, therefore, was improvidently issued; the writ of preliminary attachment may be dissolved.
Remedial Law 2018 IIIa
On February 3, 2018, Danny Delucia, Sheriff of the RTC of Makati, served the Order granting the ex-parte application for preliminary attachment of Dinggoy against Dodong. The Order, together with the writ, was duly received by Dodong. On March 1, 2018, the Sheriff served upon Dodong the complaint and summons in connection with the same case. The counsel of Dodong filed a motion to dissolve the writ.
(a) Can the preliminary attachment issued by the Court in favor of Dinggoy be dissolved? What ground/s can Dodong’s counsel invoke?
Alternative Answer
Yes, the party whose property has been ordered attached may file a motion to quash the order by filing a motion in court in which the action is pending before or after the levy (Rule 57, Section 13).
Other grounds:
a) Writ was improvidently issued.
b) A counter-bond had been posted by the defendant.
c) The attachment bond was insufficient.
