Davao Light & Power Co. Inc.

v CA
G.R. No. 93262 December 29, 1991
Ponente: NARVASA, J.

Doctrine/s:
Preliminary attachment may be validly applied for and granted before defendant is
summoned or is heard from. When Rule 57 speaks of the grant of the remedy "at the
commencement of the action or at any time thereafter," it obviously refers to the date of the
filing of the complaint — which, as above pointed out, is the date that marks "the
commencement of the action;" and the reference plainly is to a time before summons is served
on the defendant, or even before summons issues.

Facts:
The petitioner in this case, Davao Light and Power Inc, Co. filed a complaint for recovery
of sum of money and damages against Queensland Hotel and Teodorico Adarna. The complaint
contained an ex parte application for a writ of preliminary attachment.

Thereafter, Judge Nartatez granted the writ and fixed the attachment bond at around
P4Million. The summons, copy of complaint, writ of attachment, copy of attachment bond were
served upon Queensland and Adarna. Pursuant to the writ, the Sheriff seized the properties of
the latter.

Queensland and Adarna filed a motion to discharge the attachment for lack of
jurisdiction to issue the same because at the time the order of attachment was promulgated
(May 3, 1989) and the attachment writ issued (May 11,1989), the Trial Court had not yet
acquired jurisdiction over cause and person of defendants.

RTC Ruling:
Trial Court denied the motion to discharge.

CA Ruling:
Thereafter, Queensland and Adarna then filed a special civil action for certiorari to
challenge RTC’s denial of the motion to discharge the attachment. CA declared null and void
RTC’s order denying the said motion to discharge. CA ruled that in a proceeding in attachment,
the critical time which must be identified is when the trial court acquires authority to act
coercively against the defendant or his property; and that that critical time is the time of the
vesting of jurisdiction in the court over the person of the defendant in the main case.

Issue:

Whether or not preliminary attachment may issue ex parte against a defendant before
acquiring jurisdiction over his person.
The Court’s Ruling:

Supreme Court ruled in affirmative.

The Supreme Court explained that a writ of preliminary attachment MAY issue ex parte
against a defendant before acquisition of jurisdiction of the latter’s person by service of
summons or his voluntary submission to the Court’s authority.

According to the court, it is incorrect to theorize that after an action or proceeding has
been commenced and jurisdiction over the person of the plaintiff has been vested in the court,
but before the acquisition of jurisdiction over the person of the defendant (either by service of
summons or his voluntary submission to the court's authority), nothing can be validly done by
the plaintiff or the court. The SC explained that the obtention by the court of jurisdiction over
the person of the defendant is one thing; quite another is the acquisition of jurisdiction over the
person of the plaintiff or over the subject-matter or nature of the action, or the res or object
hereof. The court emphasized that there is ordinarily some appreciable interval of time between
the day of the filing of the complaint and the day of service of summons of the defendant.
During this period, different acts may be done by the plaintiff or by the Court, which are
unquestionable validity and propriety even before defendant is summoned or heard from, for
example:
 the appointment of a guardian ad litem,
 the grant of authority to the plaintiff to prosecute the suit as a pauper litigant,
 the amendment of the complaint by the plaintiff as a matter of right without leave of
court;
 authorization by the Court of service of summons by publication, the dismissal of the
action by the plaintiff on mere notice; and
 also the provisional remedies of preliminary attachment, preliminary injunction,
receivership or replevin.

The court then defined a preliminary attachment as the provisional remedy in virtue of
which a plaintiff or other party may, at the commencement of the action or at 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. According to the court,
when Rule 57 speaks of the grant of the remedy "at the commencement of the action or at any
time thereafter," it obviously refers to the date of the filing of the complaint — which, as above
pointed out, is the date that marks "the commencement of the action;" and the reference
plainly is to a time before summons is served on the defendant, or even before summons
issues.

The court further explained other related principles dealt with in the case of Mindanao
Savings:
When an attachment may not be dissolved by a showing of its irregular or improper issuance:
“When the preliminary attachment is issued upon a ground which is at the same time the
applicant's cause of action, the defendant is not allowed to file a motion to dissolve the
attachment under Section 13 of Rule 57 by offering to show the falsity of the factual averments
in the plaintiff's application and affidavits on which the writ was based — and consequently that
the writ based thereon had been improperly or irregularly issued — the reason being that the
hearing on such a motion for dissolution of the writ would be tantamount to a trial of the merits
of the action. Therefore, when the writ of attachment is of this nature, the only way it can be
dissolved is by a counterbond.

Effect of the dissolution of a preliminary attachment on the plaintiffs attachment bond:

Furthermore. the court explained that whatever acts done by the Court prior to the
acquisition of jurisdiction over the person of defendant, however valid and proper, cannot bind
and affect the defendant until and unless jurisdiction over his person is eventually obtained by
the court, either by service on him of summons or other coercive process or his voluntary
submission to the court's authority. Hence, when the sheriff or other proper officer commences
implementation of the writ of attachment, it is essential that he serve on the defendant not only
a copy of the applicant's affidavit and attachment bond, and of the order of attachment, as
explicity required by Section 5 of Rule 57, but also the summons addressed to said defendant
as well as a copy of the complaint and order for appointment of guardian ad litem, if any, as
also explicitly directed by Section 3, Rule 14 of the Rules of Court.

According to the court, service of all such documents is indispensable not only for the
acquisition of jurisdiction over the person of the defendant, but also upon considerations of
fairness for the following reasons:
 to apprise the defendant of the complaint against him;
 to apprise defendant of the issuance of a writ of preliminary attachment and the
grounds therefor
 to accord him the opportunity to prevent attachment of his property by the posting of a
counterbond or dissolving it by causing dismissal of the complaint itself, or
demonstrating the insufficiency of the applicant's affidavit or bond.
 In conclusion, the court said that in this case, the summons and a copy of the
complaint, as well as the order and writ of attachment and the attachment bond were
validly served on the defendant.