CARPIO V MACADAEG
o Respondent Judge should not have issued the two
PETITIONER: Isabelo Carpio
RESPONDENTS: Hon. Higinio Macadaeg
Oscar Abaya
City Sheriff of Manila
Provincial Sheriff of Rizal
CITATION: GR No. L-17797
DATE: November 29, 1963
PONENTE: Makalintal, J.
FACTS:
 ISABELO CARPIO – filed this petition for certiorari and
prohibition to annul and stop implementation of respondent
Judge's orders of October 24 and November 25, 1960,
directing the sale of five race horses and goods previously
attached upon motion of respondent OSCAR ABAYA.
 COMPLAINT
o Jan. 17, 1960 – Oscar filed a complaint against
petitioner for the recovery of various sums
aggregating P25,000.
o Before summons was served, and upon ex parte
motion of respondent Abaya, respondent Judge
issued two orders of attachment dated February 8
(Annex C-1) and February 10, 1960 (Annex C),
pursuant to which the Sheriff of Manila garnished
goods consisting of hardware imported by petitioner,
and the Sheriff of Rizal seized petitioner’s five racing
horses named Mohamad, Mohamad’s Pride, Magic
Spell, Nashua and Sirius.
o Feb 12, 1960 – Isabelo filed an urgent petition to
discharge the orders of attachment, which the
respondent Judge granted on March 11, 1960.
o This order of March 11, 1960 was set aside by the
Judge on March 29, 1960 upon the motion of
respondent Abaya. Though no new petition was filed
for issuance of a writ of attachment and no new order
or alias writ of attachment was issued, respondent
Sheriff of Manila garnished the aforementioned
goods and respondent Sheriff of Rizal attached the
five racing horses.
o Respondent Abaya moved for the sale at public
auction of the five racing horses. However, the sale
was halted by petitioner's putting up a bond of
P4,000 and the horses were released to him by
respondent Sheriff of Rizal.
o Respondent Abaya filed a motion to which the Judge
ordered the increase of the bond to P10,000, and
ordered respondent Sheriff of Rizal to proceed with
the sale of the horses should petitioner failed to file
the additional bond of P6,000. Motions filed by
petitioner seeking reconsideration of the said order
of October 24 were denied by respondent Judge on
November 25, 1960.
 In this petition for certiorari filed by Isabelo, he seeks
annulment of the order of October 24, 1960 ordering him to
file an additional bond of P6,000; the order of November 25,
1960 denying his motion for reconsideration of the order of
October 24; and the order of the same date authorizing the
sale of the garnished goods, on the ground that in issuing
them respondent Judge acted without jurisdiction and/or with
grave abuse of discretion.
 ISSUE: WON the respondent Judge acted without jurisdiction
and/or with grave abuse of discretion is issuing the foregoing
questioned Orders
 HELD:
o YES.
writs of preliminary attachment 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.
o But reversing himself again, he set aside his order of
March 11, 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 (Abaya's motion for reconsideration
dated March 15, 1960). These averments of
fraudulent disposals were controverted by petitioner
who, in his opposition to Abaya's motions for
reconsideration, 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 preliminary 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.
o But for much more than the above reason,
respondent Judge should not have again
ordered the issuance of the writ of preliminary
attachment since Abaya never made any affidavit
as required by Rule 59, Rules of Court, which
states that:
SEC. 3. Order issued only when affidavit and bond
filed — An order of attachment shall be granted when
it is made to appear by the affidavit of the plaintiff, or
of some other person who personally knows the
facts, that a sufficient cause of action exists, that the
case is one of those mentioned in section 1 hereof,
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, or the value of the
property which he is entitled to recover the
possession of, is as much as the sum for which the
order is granted above all legal counterclaims; which
affidavit, and the bond required by the next
succeeding section, must be duly filed with the clerk
or judge of the court before the order issues.
o Having construed that the preliminary attachment
should not have been ordered, we believe it is no
longer necessary to discuss the subsequent
actuations of respondent Judge which were all
based on the erroneous assumption that his order of
March 29, 1960 was valid.
o WHEREFORE, the order of March 29, 1960 and all
succeeding orders of respondent Judge with respect
to said preliminary attachment, are hereby declared
null and void; the attached properties are ordered
released; and the preliminary injunction issued by
this Court is made permanent. Costs against
respondent Abaya.
MAXIMO UY V CA
PETITIONERS: Maximo Uy
Sylvia Vasquez-Uy
RESPONDENTS: Court of Appeals
Rosalinda Moreno-Anlap
CITATION: GR No. 95550
DATE: November 23, 1992
PONENTE: Nocon, J.
FACTS:
 Private respondents ENRIQUE ANLAP and ROSALINDA
MORENO-ANLAP – owners of a fishing vessel called “cub-
cub” valued at PhP350,000.
o September 20, 1985 - they rented said vessel and
its accessories to petitioners for a period of sixty (60)
days commencing September 20, 1985 until
November 19, 1985, at the rental of P8,000.00 per
30-days or for a total sum of P16,000.000, which
petitioners fully paid.
o The agreement was that should petitioners continue
using the vessel after the expiration of the lease, the
same shall be considered renewed for another
period of one hundred twenty (120) days, provided
petitioners pay the amount of P16,000.00 as
advance payment for the first sixty (60) days and
another P16,000.00 after the expiration of the first
sixty (60) days.
o However, despite the expiration of the original 60-
day period petitioners failed to return the fishing
vessel and instead continued using the vessel
without paying rentals in spite of repeated demands.
o Respondent filed against petitioners for recovery of
a sum of money, return of the fishing vessel and
damages before the RTC Negros Oriental,
Dumaguete City, Br. 40. Judgment was rendered in
favour of the Respondent.
 December 15, 1989 – Petitioner filed a notice of appeal, while
the respondent filed an ex-parte motion for writ of attachment,
which was granted, and such writ was issued on December
19.
o Petitioner ex-parte moved to discharge said writ but
was denied.
o Likewise, their attempt at securing a reversal with the
Court of Appeals was a failure with the dismissal of
their petition for certiorari.
 ISSUE: WON the lower court in ordering the preliminary
attachment
 HELD:
o Attachment is a provisional remedy by which the
property of an adverse party is taken into legal
custody as a security for the satisfaction of any
judgment that may be recovered by the plaintiff or
any proper party. 4 It is an auxiliary remedy the
granting of which lies within the sound discretion of
the judge taking cognizance of the principal case
upon existence it depends. Its purpose is to secure
a contingent lien on defendant's property until
plaintiff can obtain a judgment and have such
property applied to its satisfaction or to make
provision for unsecured debts in cases where the
means of satisfaction thereof are liable to be
removed beyond the jurisdiction or improperly
disposed of or concealed or placed beyond reach of
creditors.
o We find nothing in the Rules of Court which makes
notice and hearing indispensible and mandatory for
the issuance of a writ of attachment. It is simply the
duty of the court to ensure that the writ is issued on
concrete and specific grounds and not on general
averments. Such being the rule, there is no reason
why the evidence in the main case cannot be used
as basis for issuance of a writ of attachment, more
so if it was proved that the defendants unjustly
detained, improperly disposed of or concealed or
placed the personal property beyond the reach of
their creditors.
o In the case before Us the writ of attachment sought
for was granted only after trial on the merits and a
finding on petitioners' liability for the return of the
boat leased or its value in case delivery cannot be
effected. Nevertheless, We agree with the
petitioners that We find nothing in the judgment
that would justify the issuance of a writ of
attachment.
o The statement in respondent's motion for a writ of
attachment that they are incorporating "by way of
reference the allegations of plaintiffs' complaint and
all the evidence already adduced in this case insofar
as they are applicable;" and in which complaint,
respondents alleged that petitioners refused and/or
denied them information as to the whereabouts of
their fishing vessel, 7 are not grounds justifying the
issuance of a writ of attachment. Moreover, such
allegations was not proved in the main case.
Petitioners' liability, if any is predicted on their non-
fulfillment of their obligation under the lease contract.
o In the same case, the Court said that errors
committed by the trial in the appreciation of the
probative value of the facts stated in the petition for
the writ do not affect its jurisdiction, but merely the
exercise of such jurisdiction. In such cases, appeal
together with the main case, not certiorari, is the
proper remedy.
o PREMISES CONSIDERED, the Petition for Review
is hereby GRANTED, the decision of the Court of
Appeals dated April 24, 1990 is hereby REVERSED
and the trial court's order of preliminary attachment
against the properties of the petitioners is hereby
LIFTED and CANCELLED. It is further ordered that
properties attached be restituted to the petitioners or
if this is not possible, to allow petitioners to claim on
the bond.
OLIB V PASTORAL
PETITIONERS: Sps. Oscar Olib and Roberta Olib
RESPONDENTS: Hon. Edelwina Pastoral
Corazon M. Navia
CITATION: GR No. 81120
DATE: August 20, 1990
PONENTE: Cruz, J.
FACTS:
 November 13, 1981 – Corazon M. Navia sued sps. Olib for
dissolution of their partnership and other reliefs, with a prayer
for the issuance of a writ of a preliminary attachment.
o It was granted on November 10, 1983, resulting in
the attachment of six parcels of land belonging to the
petitioners, along with stocks of merchandise in their
bodega.
o Two years later, on May 16, 1985, the petitioners
filed a motion to discharge the preliminary
attachment on the ground that the attachment bond
executed for one year from November 1983 had
already lapsed. 3 This was accompanied by a
certification from the bonding company that the bond
had not been renewed and the corresponding
payment for extension had not been made.
o On February 25,1986, Judge Miguel S. Rallos of the
Regional Trial Court of Agusan del Norte and Butuan
City rendered judgment for the petitioners and
sentenced the private respondent to pay them
actual, moral and exemplary damages, plus
attorney's fees and litigation expenses.
o On April 16, 1986, Navia perfected her appeal from
the challenged judgment, and the records of the
case were elevated to the Court of Appeals on
January 25, 1988.
o On July 20, 1987, the petitioners moved for the
discharge of the writ of preliminary attachment by the
respondent court on the basis of the judgment in
their favor. Navia filed an opposition, contending that
as she had perfected her appeal to the Court of
Appeals, the trial court no longer had any jurisdiction
over the case.
 On August 24, 1987, Judge Edelwina C. Pastoral, who had
succeeded Judge Rallos denied the motion on the ground
invoked in the opposition and declared:
Settled is the rule that the trial court loses its jurisdiction over
the record and over the subject of the case once an appeal in
the case has been perfected. The exception to this rule refers
to the orders of the Court to protect and preserve the rights of
the parties which do not involve any matter litigated by appeal
(Section 9, Rule 41 of the Rules of Court). The writ of
preliminary attachment was earlier granted as a security for
the satisfaction of the judgment, the latter being now the
subject of the appeal. To grant defendant's motion at this
juncture is to disturb and not to preserve the rights of the
parties. It is the stand of this Court that the status quo of the
parties shall be maintained for it cannot predetermine the
posture which the appellate court will adopt, either to affirm,
modify or reverse the questioned decision of this Court.
 Petitioners filed an MR and argued that if the court a quo could
issue a writ of attachment after the appeal had been
perfected, then it could a fortiori discharge such a writ,
especially where, as in the case at bar, the movants were the
prevailing parties.
o Later, somewhat inconsistently, the petitioners also
contended that there was really no more need for an
order discharging the attachment as this followed by
operation of Rule 57, Section 19, of the Rules of
Court. Such discharge was the immediate and
automatic effect of any judgment in favor of the party
whose property had been attached.
o Their motion was denied and sought for a 2nd MR but
was then again rebuffed.
 ISSUE: WON the lower court acted committed grave abuse of
discretion in denying their motion to discharge preliminary
attachment
 HELD:
o NO.
o Coming now to the argument that the attachment
was automatically lifted because of the non-payment
of the premium on the attachment bond, the Court
feels it is time again to correct a common
misimpression. The rule is that the bond is not
deemed extinguished by reason alone of such non-
payment.
o On this bond, the respondent court correctly
observed:
... a cursory examination of the bond for levy on
attachment executed between herein plaintiff
Corazon M. Navia and the branch manager of the
First Continental Assurance ' Co., Inc. (Rollo, pp.
347-348) discloses no stipulation that the surety
company will terminate the bond for non-payment of
the premium. This minor matter on non-payment of
premiums of the bond pertains to the contracting
parties to resolve.
o Finally, on the correct interpretation of Rule 57,
Section 19, of the Rules of Court, we hold that the
order of attachment is considered discharged only
where the judgment has already become final and
executory and not when it is still on appeal. The
obvious reason is that, except in a few specified
cases, execution pending appeal is not allowed.
o WHEREFORE, the petition is DISMISSED, with
costs against the petitioners. The petitioners may, if
they see fit, move for the lifting of the writ of
preliminary attachment in the Court of Appeals, to
which that ancillary remedy is deemed elevated
along with the principal action.