G.R. No. L-67715 July 11, 1986
Likewise, a few days after the filing of the criminal
WILLIAM ALAIN MIAILHE and THE HON. FELIX V.
BARBERS, in his capacity as Presiding Judge, RTC
of Manila, Branch XXXIII, petitioners-appellants,
vs.
ELAINE M. DE LENCQUESAING and HERVE DE
LENCQUESAING, respondents-appellees.
PARAS, J.:
This petition is an appeal by certiorari from the Decision
of the Intermediate Appellate Court in AC-G.R. SP. No.
01914 which declared null-and void, the Order of the Hon.
Judge Felix V. Barbers, issued in Civil Case No. 83-16829,
dated April 14, 1983, granting petitioner's application for
the issuance of a writ of preliminary attachment and the
Order dated September 13, 1983 denying respondent's
motion to lift said attachment.
The pertinent facts that gave rise to the instant petition
are as follows: Petitioner William Alain Miailhe, his
sisters Monique Miailhe Sichere, Elaine Miailhe de
Lencquesaing and their mother, Madame Victoria D.
Miailhe are co-owners of several registered real properties
located in Metro Manila. By common consent of the said
co-owners, petitioner William Alain has been
administering said properties since 1960. As Madame
Victoria D. Miailhe, her daughter Monique and son William
Alain (herein petitioner) failed to secure an out-of court
partition thereof due to the unwillingness or opposition of
respondent Elaine, they filed in the Court of First Instance
of Manila (now Regional Trial Court) an action for
Partition, which was docketed as Civil Case No. 105774
and assigned to Branch . . . thereof, presided over by
Judge Pedro Ramirez. Among the issues presented in the
partition case was the matter of petitioner's account as
administrator of the properties sought to be partitioned.
But while the said administrator's account was still being
examined, respondent Elaine filed a motion praying that
the sum of P203,167.36 which allegedly appeared as a
cash balance in her favor as of December 31, 1982, be
ordered delivered to her by petitioner William Alain.
Against the opposition of petitioner and the other co-
owners, Judge Pedro Ramirez granted the motion in his
Order dated December 19, 1983 which order is now the
subject of a certiorari proceeding in the Intermediate
Appellate Court under AC-G.R. No. SP-03070.
Meanwhile however, and more specifically on February
28, 1983, respondent Elaine filed a criminal complaint for
estafa against petitioner William Alain, with the office of
the City Fiscal of Manila, alleging in her supporting
affidavit that on the face of the very account submitted
by him as Administrator, he had misappropriated
considerable amounts, which should have been turned
over to her as her share in the net rentals of the common
properties. Two days after filing the complaint,
respondent flew back to Paris, the City of her residence.
complaint, an extensive news item about it appeared
prominently in the Bulletin Today, March 4, 1983 issue,
stating substantially that Alain Miailhe, a consul of the
Philippines in the Republic of France, had been charged
with Estafa of several million pesos by his own sister with
the office of the City Fiscal of Manila.
On April 12, 1983, petitioner Alain filed a verified
complaint against respondent Elaine, for Damages in the
amount of P2,000,000.00 and attorney's fees of
P250,000.00 allegedly sustained by him by reason of the
filing by respondent (then defendant) of a criminal
complaint for estafa, solely for the purpose of
embarrassing petitioner (then plaintiff) and
besmirching his honor and reputation as a private
person and as an Honorary Consul of the Republic of the
Philippine's in the City of Bordeaux, France. Petitioner
further charged respondent with having caused the
publication in the March 4, 1983 issue of the Bulletin
Today, of a libelous news item. In his verified complaint,
petitioner prayed for the issuance of a writ of
preliminary attachment of the properties of
respondent consisting of 1/6 undivided interests in certain
real properties in the City of Manila on the ground that
"respondent-defendant is a non-resident of the
Philippines", pursuant to paragraph (f), Section 1, Rule
57, in relation to Section 17, Rule 14 of the Revised Rules
of Court.
This case for Damages was docketed as Civil Case No. 83-
16829 of the Regional Trial Court of Manila, Branch XXXIII
presided over by the Honorable Felix V. Barbers.
On April 14, 1983, Judge Barbers granted petitioner's
application for preliminary attachment upon a bond to be
filed by petitioner in the amount of P2,000,000.00.
Petitioner filed said bond and upon its approval, the Writ
of Preliminary Attachment was issued on April 18, 1983
which was served on the Deputy Clerk of Court of Branch
XXX before whom the action for Partition was pending.
On May 17, 1983, respondent thru counsel filed a motion
to lift or dissolve the writ of attachment on the ground
that the complaint did not comply with the provisions of
Sec. 3 of Rule 57, Rules of Court and that petitioner's
claim was for unliquidated damages. The motion to lift
attachment having been denied, respondent filed with the
Intermediate Appellate Court a special action for certiorari
under AC-G.R. SP No. 01914 alleging that Judge Barbers
had acted with grave abuse of discretion in the premises.
On April 4, 1984, the IAC issued its now assailed Decision
declaring null and void the aforesaid Writ of preliminary
attachment. Petitioner filed a motion for the
reconsideration of the Decision but it was denied hence,
this present petition which was given due course in the
Resolution of this Court dated February 6, 1985.
We find the petition meritless. The most important issue
raised by petitioner is whether or not the Intermediate
Appellate Court erred in construing Section 1 par. (f) Rule
57 of the Rules of Court to be applicable only in case the
claim of the plaintiff is for liquidated damages (and
therefore not where he seeks to recover unliquidated
damages arising from a crime or tort).
In its now assailed decision, the IAC stated —
We find, therefore, and so hold that
respondent court had exceeded its
jurisdiction in issuing the writ of
attachment on a claim based on an action
for damages arising from delict and quasi
delict the amount of which is uncertain
and had not been reduced to judgment
just because the defendant is not a
resident of the Philippines. Because of
the uncertainty of the amount of
plaintiff's claim it cannot be said that said
claim is over and above all legal
counterclaims that defendant may have
against plaintiff, one of the indispensable
requirements for the issuance of a writ of
attachment which should be stated in the
affidavit of applicant as required in Sec.
3 of Rule 57 or alleged in the verified
complaint of plaintiff. The attachment
issued in the case was therefore null and
void.
We agree.
Section 1 of Rule 57 of the Rules of Court provides —
SEC. 1. Grounds upon which attachment
may issue. 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
security for the satisfaction of any
judgment that may be recovered in the
following cases:
(a) In an action for the recovery of
money or damages on a cause of action
arising fromcontract, express or implied,
against a party who is about to depart
from the Philippines with intent to
defraud his creditors;
(b) In an action for money or property
embezzled or fraudulently misapplied or
converted to his own use by a public
officer, or an officer of a corporation or
an attorney, factor, broker, agent, or
clerk, in the course of his employment as
such, or by any other person in a
fiduciary capacity, or for a willful violation
of duty;
(c) In an action to recover the possession
of personal property unjustly detained,
when the property, or any part thereof,
has been concealed. removed, or
disposed of to prevent its being found or
taken by the applicant or an officer;
(d) In an action against a party who has
been guilty of a fraud in contracting the
debt or incurring the obligation upon
which the action is brought, or in
concealing or disposing of the property
for the taking, detention or conversion of
which the action is brought;
(e) In an action against a party who has
removed or disposed of his property, or
is about to do so, with intent to defraud
his creditors;
(f) In an action against a party who
resides out of the Philippines, or on
whom summons may be served by
publication. (emphasis supplied)
While it is true that from the aforequoted provision
attachment may issue "in an action against a party who
resides out of the Philippines, " irrespective of the nature
of the action or suit, and while it is also true that in the
case of Cu Unjieng, et al vs. Albert, 58 Phil. 495, it was
held that "each of the six grounds treated ante is
independent of the others," still it is imperative that the
amount sought be liquidated.
In view of the foregoing, the Decision appealed from is
hereby AFFIRMED.
SO ORDERED.
G.R. No. 40054 September 14, 1933
LA GRANJA, INC., petitioner,
vs.
FELIX SAMSON, Judge of First Instance of Cagayan, CHUA
BIAN, CHUA YU LEE and CHUA KI, respondents.
Miguel P. Pio for petitioner.
The Respondent Judge in his own behalf.
No appearance for other respondents.
VILLA-REAL, J.:
In this original petition for mandamus filed by the
corporate entity, La Granja, Inc., against Felix Samson, as
Judge of the Court of First Instance of Cagayan, Chua
Bian, Chua Yu Lee and Chua Ki, the petitioner herein, for
the reasons stated in its petition, prays that a writ of
mandamus be issued against the respondent Judge
compelling him to issue a writ of attachment against the
properties of the other respondents herein, who are
defendants in civil case No. 1888 of the Court of First
Instance of Cagayan. The pertinent facts necessary for
the solution of the questions raised in the present case
are as follows:
On July 5, 1932, the petitioner herein, La Granja, Inc.,
filed a complaint in the Court of First Instance of Cagayan,
against Chua Bian, Chua Yu Lee and Chua Ki, for the
recovery of the sum of P2,418.18 with interest thereon at
the rate of 12 per cent per annum, which case was
docketed as civil case No. 1888. The plaintiff at the same
time, also prayed for the issuance of an order of
attachment against the aforementioned defendants'
property and accompanied said complaint with an
affidavit of the manager of the aforesaid petitioner, La
Granja, Inc., wherein it was alleged among other essential
things, that the said defendants have disposed or are
disposing of their properties in favor of the Asiatic
Petroleum Co., with intent to defraud their creditors. The
respondent judge, wishing to ascertain or convince
himself of the truth of the alleged disposal, required the
petitioner herein to present evidence to substantiate its
allegation, before granting its petition. Inasmuch as the
petitioner refused to comply with the court's requirement,
alleging as its ground that was not obliged to do so, the
respondent judge dismissed said petition for an order of
attachment.
The only question to decide in the present case is whether
or not the mere filing of an affidavit executed in due form
is sufficient to compel a judge to issue an order of
attachment.
Section 426 of the Code of Civil procedure provides the
following:
SEC. 426. Granting order of attachment. — A judge
or justice of the peace shall grant an order of attachment
when it is made to appear to the judge or justice of the
peace by the affidavit of the plaintiff, or of some other
person who knows the facts, that a sufficient cause of
action exists, and that the case is one of those mentioned
in section four hundred and twenty-four, and that there
is no other sufficient security for the claim sought to be
enforced by the action, and that the amount due to the
plaintiff above all legal set-offs or counterclaims is as
much as the sum for which the order is granted.
It will be seen that the legal provision just cited orders
the granting of a writ of attachment when it has been
made to appear by affidavit that the facts mentioned by
law as sufficient to warrant the issuance thereof, exist.
Although the law requires nothing more than the affidavit
as a means of establishing the existence of such facts,
nevertheless, such affidavit must be sufficient to convince
the court of their existence, the court being justified in
rejecting the affidavit if it does not serve this purpose and
in denying the petition for an order of attachment. The
affidavit filed by the petitioner, La Granja, Inc., must not
have satisfied the respondent judge inasmuch as he
desired to ascertain or convince himself of the truth of the
facts alleged therein by requiring evidence to substantiate
them. The sufficiency or insufficiency of an affidavit
depends upon the amount of credit given it by the judge,
and its acceptance or rejection, upon his sound discretion.
Hence, the respondent judge, in requiring the
presentation of evidence to establish the truth of the
allegation of the affidavit that the defendants had
disposed or were disposing of their property to defraud
their creditors, has done nothing more than exercise his
sound discretion in determining the sufficiency of the
affidavit.
In view of the foregoing considerations, we are of the
opinion and so hold that the mere filing of an affidavit
executed in due form is not sufficient to compel a judge
to issue an order of attachment, but it is necessary that
by such affidavit it be made to appear to the court that
there exists sufficient cause for the issuance thereof, the
determination of such sufficiency being discretionary on
the part of the court.
Wherefore, the petition for a writ of mandamus is hereby
denied and the same is dismissed, with costs against the
petitioner. So ordered.

A.M. No. MTJ-93-853 March 14, 1995
DOMINGO BALANTES, complainant,
vs.
JUDGE JULIAN OCAMPO III, Municipal Trial Court
in Cities, Branch I, Naga City, respondent.
A.M. No. P-94-1013 March 14, 1995
DOMINGO BALANTES, complainant,
vs.
LILIA S. BUENA, Clerk of Court, MTCC, Naga
City/Ex-officio Naga City Sheriff, respondent.
RESOLUTION
ROMERO, J.:
This resolution disposes of two related complaints of
Domingo Balantes, one of which is against respondent
Judge Julian Ocampo III (A.M. No. MTJ-
93-853) 1 and the other against Clerk of Court Lilia S.
Buena (A.M. No. P-94-1013). 2
Records show that complainant is the defendant in an
ejectment case (Civil Case No. 8339) filed by plaintiff
Roberto Roco but which was decided by respondent judge
against complainant. Complainant appealed the adverse
decision to the RTC, Branch 23, Naga City (docketed as
RTC 88-1467). On motion of the plaintiff-appellee, the
RTC, on October 23, 1989 issued a Writ of Execution and
Demolition pending appeal, ordering the removal of one-
half (1/2) portion of complainant's residential house found
to be built inside the titled property of the plaintiff.
Subsequently, the decision on appeal was affirmed by the
same Regional Trial Court and the records of the case
were remanded to respondent's sala for execution of the
judgment. On November 25, 1991, respondent Judge
issued a writ ordering the demolition of the remaining half
portion of complainant's residential house found standing
on a public property (legal easement). Complainant filed
a motion for reconsideration of the demolition order but
the same was denied on December 5, 1991.
It further appears that on August 19, 1992, a second writ
of demolition was issued by the respondent Judge,
followed by a third one dated February 3, 1993.
Complainant now alleges that respondent judge issued
the orders granting plaintiff's motion for issuance of writ
of demolition with precipitate haste, hence, he was
deprived of his right to oppose the same, that the effect
of these writs of demolition is to demolish complainant's
entire house, notwithstanding that the appellate
court's3 writ of execution and demolition issued pending
appeal ordered the demolition only of the half portion of
his house found standing on plaintiff's land.
Respondent Judge Julian Ocampo III filed his comment
on November 25, 1993 (A.M. No. MTJ-93-853, pp. 30-34).
He explained that after a series of appeals (to RTC, Court
of Appeals and the Supreme Court), and the remand of
records to court a quo, he issued the questioned writs of
demolition with respect to the remaining portion of
complainant's house situated inside the property which
court a quo found to be owned by the plaintiff by right of
accretion.
Respondent Judge argues that a writ of demolition, being
merely incidental to the execution of a final judgment, is
immediately enforceable after hearing the arguments of
both parties; that though the writ of demolition was
issued on the same day the court issued its order of
August 19, 1992, the writ was implemented only on
September 2, 1992; that a motion for reconsideration was
filed by herein complainant on August 29, 1992 to
forestall its implementation but the same was submitted
for the court's consideration only on September 3, 1992
and by that time the writ had already been implemented.
Respondent Judge further argues that the restraining
order issued on September 2, 1992 cannot be complied
with because by the time it was received by the City
Sheriff, the writ of demolition had already been effected
and the premises delivered to the plaintiff.
With respect to the complaint filed against respondent
Clerk of Court, complainant alleges that she immediately
proceeded to implement the writs of demolition without
giving him a chance to move for a reconsideration of the
order granting issuance thereof.
We find respondent judge to have grossly abused his
authority in issuing the questioned writs of demolition.
A precise determination of the total land area encroached
upon by complainant over subject property in Civil Case
No. 8339 has been ordered by Judge Gregorio Manio,
RTC, Branch 23, Naga City in the course of the appeal
thereof. Records show that previous to the issuance of
the writ of execution and demolition pending appeal, said
judge ordered the deputy sheriff with the assistance of a
geodetic engineer to determine the metes and bounds of
the plaintiff's property. The Sheriff's Return clearly
showed that two (2) meters of plaintiff's property had
been more or less encroached upon by complainant's
house while it occupied three (3) meters, more or less, of
the legal easement formed by accretion. The writ of
demolition thus issued by the appellate court contained
specifications in accordance with such findings and was
returned fully satisfied on January 20, 1990. Moreover,
the decision of the RTC, Branch 23, Naga City which
incorporated such findings was successively affirmed by SO ORDERED.
the Court of Appeals and the Supreme Court.
Feliciano, Melo, Vitug and Francisco, JJ., concur.
Respondent Judge, therefore, was fully aware of the
previous delineation of the property of the plaintiff.
Nevertheless, when the records were remanded to him
and upon motion of the plaintiff's counsel, he issued Footnotes
another writ of demolition which sought to demolish the
remaining portion of the defendant's house which, as
1 The complaint filed against respondent
already found by the appellate court(s), was standing
Judge is for gross ignorance of the law
upon a public property.
and procedure, grave abuse of judicial
power, evident partiality, incompetence,
The order of demolition dated November 20, 1991 which personal hostility and violation of
he issued, in fact, was the subject of a petition constitutional rights of the complainant in
for certiorari (SPL. Civil Action No. RTC 91-2467) before connection with respondent judge's
the same RTC, Branch 23, Naga City where Judge issuance of a writ of demolition of
Gregorio A. Manio declared said order of demolition and complainant's house.
the writ issued pursuant thereto as null and void, having
been issued with grave abuse of discretion and enjoined
2 On the other hand, the complaint
respondent Judge from issuing any further writs of
against respondent Clerk of Court
demolition in Civil Case No. 8339.
charges the same with deprivation of
complainant's right to due process; grave
Despite this directive, respondent Judge exhibited a ignorance and disregard of the law and
defiant attitude by issuing another writ of demolition procedure; oppression and persecution
dated August 19, 1992. Said order was the subject of complainant; incompetency in the
another petition for certiorari/prohibition (SPL. Civil performance of official duties; grave
Action No. 92-2651) wherein Judge Antonio N. Gerona of misconduct; and performing acts inimical
Branch 27, RTC, Naga City issued an order dated to the service.
September 2, 1992 restraining the implementation of the
aforesaid writ of demolition by the sheriff of MTC, Naga
3 RTC, Branch 23, Naga City.
City.
4 Pancho Yap Young v. Roberto M.
As regards the charge against respondent Clerk of Court
Momblan, A.M. No. P-89-367, January 9,
and Ex-Officio Sheriff Lilia S. Buena, the same is
1992, 205 SCRA 33.
dismissed, it appearing from the certification she issued
that the Temporary Restraining Order issued by the RTC,
Branch 27, Naga City was received by her on September
2, 1992 at 2:15 p.m., after the demolition had been
completely effected and the premises delivered to the
plaintiff at 1:30 p.m. of same date. It appears that
respondent Buena was not aware of the existing TRO
which she received within the hour after the demolition
had taken place, thus rendering said restraining order
a fait accompli. The rule is that when a writ is placed in
the hands of a sheriff, it is his duty, in the absence of
instructions, to proceed with reasonable celerity and
promptness to execute it according to its mandate. He
may not apply his discretion as to whether to execute it
or not.4

WHEREFORE, in view of the foregoing, respondent Judge

Julian Ocampo III, MTCC, Branch I, Naga City is hereby
ordered to pay a FINE of P5,000.00 with WARNING that
a repetition of the same or similar infraction in the future
will merit a stiffer penalty. The complaint against
respondent Clerk of Court and Ex-Officio Sheriff Lilia S.
Buena is hereby DISMISSED.