THIRD DIVISION
G.R. No.
84034 December 22, 1988
ALBERTO SIEVERT,
petitioner, vs.
COURT OF APPEALS,
HON. JUDGE ARTEMON D. LUNA and AURELIO CAMPOSANO, respondents.
King & Adorio
Law Offices for petitioner.
Moises C. Kallos
for private respondent.
FELICIANO, J.:
On 18 May 1988
petitioner Alberto Sievert a citizen and resident of the Philippines
received by mail a Petition for Issuance of a Preliminary Attachment
filed with the Regional Trial Court of Manila Branch 32 in Civil Case
No. 88-44346. Petitioner had not previously received any summons and
any copy of a complaint against him in Civil Case No. 88-44346.
On the day set
for hearing of the Petition for a Preliminary Writ of Attachment,
petitioner's counsel went before the trial court and entered a
special appearance for the limited purpose of objecting to the
jurisdiction of the court. He simultaneously filed a written
objection to the jurisdiction of the trial court to hear or act upon
the Petition for Issuance of a Preliminary Writ of Attachment. In
this written objection, petitioner prayed for denial of that Petition
for lack of jurisdiction over the person of the petitioner (defendant
therein) upon the ground that since no summons had been served upon
him in the main case, no jurisdiction over the person of the
petitioner had been acquired by the trial court.
The trial court
denied the petitioner's objection and issued in open court an order
which, in relevant part, read as follows:
Under Section 1,
Rule 57, Rules of Court, it is clear that a plaintiff or any proper
party may "... at the commencement of the action or at any time
thereafter, have the property of the adverse party attached as the
security for the satisfaction of any judgment ..." This rule
would overrule the contention that this Court has no jurisdiction to
act on the application, although if counsel for defendant so desire,
she is given five (5) days from today within which to submit her
further position why the writ should not be issued, upon the receipt
of which or expiration of the period, the pending incident shall be
considered submitted for resolution. (Underscoring in the original)
1
Thereupon, on the
same day, petitioner filed a Petition for certiorari with the Court
of Appeals. On 13 July 1988, the respondent appellate court rendered
a decision, notable principally for its brevity, dismissing the
Petition. The relevant portion of the Court of Appeals' decision is
quoted below:
The grounds
raised in this petition state that the court a quo had not acquired
jurisdiction over defendant (now petitioner) since no summons had
been served on him, and that respondent Judge had committed a grave
abuse of discretion in issuing the questioned order without
jurisdiction.
In short, the
issue presented to us is whether respondent Judge may issue a writ of
preliminary attachment against petitioner before summons is served on
the latter.
We rule for
respondent Judge.
Under Sec. 1,
Rule 57, it is clear that, at the commencement of the action, a party
may have the property of the adverse party attached as security. The
resolution of this issue depends, therefore, on what is meant by
"Commencement of the action." Moran, citing American
jurisprudence on this point, stated thus: "Commencement of
action. — Action is commenced by filing of the complaint, even
though summons is not issued until a later date." (Comment on
the Rules of Court, Vol. I, p. 150, 1979). Thus, a writ of
preliminary attachment may issue upon filing of the complaint even
before issuance of the summons.
WHEREFORE, for
lack of merit, the petition is hereby denied and, accordingly,
dismissed. (Emphasis supplied) 2
The petitioner is
now before this Court on a Petition for Review on Certiorari,
assailing the above-quoted decision of the Court of Appeals. The
petitioner assigns two (2) errors:
1. The
proceedings taken and the order issued on plaintiffs petition for
attachment prior to the service of summons on the defendant were
contrary to law and jurisprudence and violated the defendant's right
to due process.
2. The Court of
Appeals committed a grave abuse of discretion amounting to lack of
jurisdiction in ruling that a writ of preliminary attachment may
issue upon filing of the complaint even prior to issuance of the
summons. 3
The two (2)
assignments of error relate to the single issue which we perceive to
be at stake here, that is, whether a court which has not acquired
jurisdiction over the person of the defendant in the main case, may
bind such defendant or his property by issuing a writ of preliminary
attachment.
Both the trial
court and the Court of Appeals held that the defendant may be bound
by a writ of preliminary attachment even before summons together with
a copy of the complaint in the main case has been validly served upon
him.
We are unable to
agree with the respondent courts.
There is no
question that a writ of preliminary attachment may be applied for a
plaintiff "at the commencement of the action or at any time
thereafter" in the cases enumerated in Section 1 of Rule 57 of
the Revised Rules of Court. The issue posed in this case, however, is
not to be resolved by determining when an action may be regarded as
having been commenced, a point in time which, in any case, is not
necessarily fixed and Identical regardless of the specific purpose
for which the deter. nation is to be made. The critical time which
must be Identified is, rather, when the trial court acquires
authority under law to act coercively against the defendant or his
property in a proceeding in attachment. We believe and so hold that
critical time is the time of the vesting of jurisdiction in the court
over the person of the defendant in the main case.
|
Attachment is an ancillary remedy. It is not
sought for its own sake but rather to enable the attaching party
to realize upon relief sought and expected to be granted in the
main or principal action . 4 A court which has not acquired
jurisdiction over the person of defendant, cannot bind that
defendant whether in the main case or in any ancillary proceeding
such as attachment proceedings. The service of a petition for
preliminary attachment without the prior or simultaneous service
of summons and a copy of the complaint in the main case — and
that is what happened in this case — does not of course confer
jurisdiction upon the issuing court over the person of the
defendant.
|
Ordinarily, the
prayer in a petition for a writ of preliminary attachment is embodied
or incorporated in the main complaint itself as one of the forms of
relief sought in such complaint. Thus, valid service of summons and a
copy of the complaint will in such case vest jurisdiction in the
court over the defendant both for purposes of the main case and for
purposes of the ancillary remedy of attachment. In such case, notice
of the main case is at the same time notice of the auxiliary
proceeding in attachment. Where, however, the petition for a writ of
preliminary attachment is embodied in a discrete pleading, such
petition must be served either simultaneously with service of summons
and a copy of the main complaint, or after jurisdiction over the
defendant has already been acquired by such service of summons.
Notice of the separate attachment petition is not notice of the main
action. Put a little differently, jurisdiction whether ratione
personae or ratione materiae in an attachment proceeding is ancillary
to jurisdiction ratione personae or ratione materiae in the main
action against the defendant. If a court has no jurisdiction over the
subject matter or over the person of the defendant in the principal
action, it simply has no jurisdiction to issue a writ of preliminary
attachment against the defendant or his property.
It is basic that
the requirements of the Rules of Court for issuance of preliminary
attachment must be strictly and faithfully complied with in view of
the nature of this provisional remedy. In Salas v. Adil, 5 this
Court described preliminary attachment as —
a rigorous remedy
which exposes the debtor to humiliation and annoyance, such [that] 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 writ so issued
shall be null and void. (Emphasis supplied ) 6
The above words
apply with greater force in respect of that most fundamental of
requisites, the jurisdiction of the court issuing attachment over the
person of the defendant.
In the case at
bar, the want of jurisdiction of the trial court to proceed in the
main case against the defendant is quite clear. It is not disputed
that neither service of summons with a copy of the complaint nor
voluntary appearance of petitioner Sievert was had in this case. Yet,
the trial court proceeded to hear the petition for issuance of the
writ. This is reversible error and must be corrected on certiorari.
WHEREFORE, the
Petition for Review on certiorari is GRANTED due course and the Order
of the trial court dated 20 May 1988 and the Decision of the Court of
Appeals dated 13 July 1988 are hereby SET ASIDE and ANNULLED. No
pronouncement as to costs.
SO ORDERED.