THIRD DIVISION the issuance of a writ was supported with the

affidavit of Nepomuceno.6
G.R. No. 175587               September 21, 2007
On October 24, 1997, the trial court granted the
PHILIPPINE COMMERCIAL INTERNATIONAL application and issued the writ ex parte7 after
BANK, Petitioner, petitioner posted a bond in the amount of
vs. ₱18,798,734.69, issued by Prudential Guarantee &
JOSEPH ANTHONY M. ALEJANDRO, Respondent. Assurance Inc., under Bond No. HO-46764-97. On
the same date, the bank deposits of respondent with
Rizal Commercial Banking Corporation (RCBC)
DECISION
were garnished. On October 27, 1997, respondent,
through counsel, filed a manifestation informing the
YNARES-SANTIAGO, J.: court that he is voluntarily submitting to its
jurisdiction.8
This petition for review assails the May 31, 2006
Decision1 of the Court of Appeals in CA-G.R. CV No. Subsequently, respondent filed a motion to
78200 affirming the August 30, 2000 Decision2 of the quash9 the writ contending that the withdrawal of his
Regional Trial Court of Makati, which granted unassigned deposits was not fraudulent as it was
respondent Joseph Anthony M. Alejandro’s claim for approved by petitioner. He also alleged that
damages arising from petitioner Philippine petitioner knew that he maintains a permanent
Commercial International Bank’s (PCIB) invalid residence at Calle Victoria, Ciudad Regina, Batasan
garnishment of respondent’s deposits. Hills, Quezon City, and an office address in Makati
City at the Law Firm Romulo Mabanta Buenaventura
On October 23, 1997, petitioner filed against Sayoc & De los Angeles, 10 where he is a partner. In
respondent a complaint3 for sum of money with both addresses, petitioner regularly communicated
prayer for the issuance of a writ of preliminary with him through its representatives. Respondent
attachment. Said complaint alleged that on added that he is the managing partner of the Hong
September 10, 1997, respondent, a resident of Hong Kong branch of said Law Firm; that his stay in Hong
Kong, executed in favor of petitioner a promissory Kong is only temporary; and that he frequently
note obligating himself to pay ₱249,828,588.90 plus travels back to the Philippines.
interest. In view of the fluctuations in the foreign
exchange rates which resulted in the insufficiency of On December 24, 1997, the trial court issued an
the deposits assigned by respondent as security for order quashing the writ and holding that the
the loan, petitioner requested the latter to put up withdrawal of respondent’s unassigned deposits was
additional security for the loan. Respondent, not intended to defraud petitioner. It also found that
however, sought a reconsideration of said request the representatives of petitioner personally
pointing out petitioner’s alleged mishandling of his transacted with respondent through his home
account due to its failure to carry out his instruction address in Quezon City and/or his office in Makati
to close his account as early as April 1997, when the City. It thus concluded that petitioner misrepresented
prevailing rate of exchange of the US Dollar to and suppressed the facts regarding respondent’s
Japanese yen was US$1.00:JPY127.50.4 It appears residence considering that it has personal and
that the amount of ₱249,828,588.90 was the official knowledge that for purposes of service of
consolidated amount of a series of yen loans summons, respondent’s residence and office
granted by petitioner to respondent during the addresses are located in the Philippines. The
months of February and April 1997.5 dispositive portion of the court’s decision is as
follows:
In praying for the issuance of a writ of preliminary
attachment under Section 1 paragraphs (e) and (f) of WHEREFORE, the URGENT MOTION TO QUASH,
Rule 57 of the Rules of Court, petitioner alleged that being meritorious, is hereby GRANTED, and the
(1) respondent fraudulently withdrew his unassigned ORDER of 24 October 1997 is hereby
deposits notwithstanding his verbal promise to PCIB RECONSIDERED and SET ASIDE and the WRIT
Assistant Vice President Corazon B. Nepomuceno OF attachment of the same is hereby
not to withdraw the same prior to their assignment DISCHARGED.
as security for the loan; and (2) that respondent is
not a resident of the Philippines. The application for
SO ORDERED.11

1
With the denial12 of petitioner’s motion for The trial court denied petitioner’s motion for
reconsideration, it elevated the case to the Court of reconsideration on October 24, 2000.21
Appeals (CA-G.R. SP No. 50748) via a petition for
certiorari. On May 10, 1999, the petition was Petitioner elevated the case to the Court of Appeals
dismissed for failure to prove that the trial court which affirmed the findings of the trial court. It held
abused its discretion in issuing the aforesaid that in claiming that respondent was not a resident of
order.13 Petitioner filed a motion for reconsideration the Philippines, petitioner cannot be said to have
but was denied on October 28, 1999.14 On petition been in good faith considering that its knowledge of
with this Court, the case was dismissed for late filing respondent’s Philippine residence and office address
in a minute resolution (G.R. No. 140605) dated goes into the very issue of the trial court’s jurisdiction
January 19, 2000.15 Petitioner filed a motion for which would have been defective had respondent
reconsideration but was likewise denied with not voluntarily appeared before it.
finality on March 6, 2000.16
The Court of Appeals, however, reduced the amount
Meanwhile, on May 20, 1998, respondent filed a of damages awarded to petitioner and specified their
claim for damages in the amount of P25 Million17 on basis. The dispositive portion of the decision of the
the attachment bond (posted by Prudential Court of Appeals states:
Guarantee & Assurance, Inc., under JCL(4) No.
01081, Bond No. HO-46764-97) on account of the WHEREFORE, the appeal is PARTIALLY
wrongful garnishment of his deposits. He presented GRANTED and the decision appealed from is
evidence showing that his ₱150,000.00 RCBC check hereby MODIFIED. The award of damages in the
payable to his counsel as attorney’s fees, was amount of ₱25,000,000.00 is deleted. In lieu thereof,
dishonored by reason of the garnishment of his Prudential Guarantee & [Assurance, Inc.], which is
deposits. He also testified that he is a graduate of solidarily liable with appellant [herein petitioner], is
the Ateneo de Manila University in 1982 with a ORDERED to pay appellee [herein respondent]
double degree of Economics and Management ₱2,000,000.00 as nominal damages; ₱5,000,000.00
Engineering and of the University of the Philippines as moral damages; and ₱1,000,000.00 as attorney’s
in 1987 with the degree of Bachelor of Laws. fees, to be satisfied against the attachment bond
Respondent likewise presented witnesses to prove under Prudential Guarantee & Assurance, Inc. JCL
that he is a well known lawyer in the business (4) No. 01081.
community both in the Philippines and in Hong
Kong.18 For its part, the lone witness presented by
petitioner was Nepomuceno who claimed that she SO ORDERED.22
acted in good faith in alleging that respondent is a
resident of Hong Kong.19 Both parties moved for reconsideration. On
November 21, 2006, the Court of Appeals denied
On August 30, 2000, the trial court awarded petitioner’s motion for reconsideration but granted
damages to respondent in the amount of P25 Million that of respondent’s by ordering petitioner to pay
without specifying the basis thereof, thus: additional ₱5Million as exemplary damages.23

WHEREFORE, premises above considered, and Hence, the instant petition.

defendant having duly established his claim in the
amount of ₱25,000,000.00, judgment is hereby At the outset, it must be noted that the ruling of the
rendered ordering Prudential Guarantee & trial court that petitioner is not entitled to a writ of
[Assurance] Co., which is solidarily liable with attachment because respondent is a resident of the
plaintiff to pay defendant the full amount of bond Philippines and that his act of withdrawing his
under Prudential Guarantee & Assurance, Inc. deposits with petitioner was without intent to
JCL(4) No. 01081, [Bond No. HO-46764-97], dated defraud, can no longer be passed upon by this
24 October 1997 in the amount of ₱18,798,734.69. Court. More importantly, the conclusions of the court
And, considering that the amount of the bond is that petitioner bank misrepresented that respondent
insufficient to fully satisfy the award for damages, was residing out of the Philippines and suppressed
plaintiff is hereby ordered to pay defendant the the fact that respondent has a permanent residence
amount of ₱6,201,265.31. in Metro Manila where he may be served with
summons, are now beyond the power of this Court
SO ORDERED.20 to review having been the subject of a final and

2
executory order. Said findings were sustained by the were made through defendant’s temporary home
Court of Appeals in CA-G.R. SP No. 50784 and by and business addresses in Hongkong. It is therefore
this Court in G.R. No. 140605. The rule on clear that plaintiff could not deny their personal and
conclusiveness of judgment, which obtains under the official knowledge that defendant’s permanent and
premises, precludes the relitigation of a particular official residence for purposes of service of
fact or issue in another action between the same summons is in the Philippines. In fact, this finding is
parties even if based on a different claim or cause of further confirmed by the letter of Mr. JOHN
action. The judgment in the prior action operates as GOKONGWEI, JR. Chairman, Executive Committee
estoppel as to those matters in issue or points of plaintiff BANK, in his letter dated 6 October 1997
controverted, upon the determination of which the on the subject loan to defendant of the same law
finding or judgment was rendered. The previous firm was addressed to the ROMULO LAW FIRM in
judgment is conclusive in the second case, as to MAKATI.
those matters actually and directly controverted and
determined.24 Hence, the issues of [Anent the] second ground of attachment x x x [t]he
misrepresentation by petitioner and the residence of Court finds that the amount withdrawn was not part
respondent for purposes of service of summons can of defendant’s peso deposits assigned with the bank
no longer be questioned by petitioner in this case. to secure the loan and as proof that the withdrawal
was not intended to defraud plaintiff as creditor is
The core issue for resolution is whether petitioner that plaintiff approved and allowed said withdrawals.
bank is liable for damages for the improper issuance It is even noted that when the Court granted the
of the writ of attachment against respondent. prayer for attachment it was mainly on the first
ground under Section 1(f) of Rule 57 of the 1997
We rule in the affirmative. Rules of Civil Procedure, that defendant resides out
of the Philippines.
Notwithstanding the final judgment that petitioner is
guilty of misrepresentation and suppression of a On the above findings, it is obvious that plaintiff
material fact, the latter contends that it acted in good already knew from the beginning the deficiency of its
faith. Petitioner also contends that even if second ground for attachment [i.e.,] disposing
respondent is considered a resident of the properties with intent to defraud his creditors, and
Philippines, attachment is still proper under Section therefore plaintiff had to resort to this
1, paragraph (f), Rule 57 of the Rules of Court since misrepresentation that defendant was residing out of
he (respondent) is a resident who is temporarily out the Philippines and suppressed the fact that
of the Philippines upon whom service of summons defendant’s permanent residence is in METRO
may be effected by publication. MANILA where he could be served with summons.

Petitioner’s contentions are without merit. On the above findings, and mainly on the
misrepresentations made by plaintiff on the grounds
for the issuance of the attachment in the verified
While the final order of the trial court which quashed
complaint, the Court concludes that defendant has
the writ did not categorically use the word "bad faith"
duly proven its grounds in the MOTION and that
in characterizing the representations of petitioner,
plaintiff is not entitled to the attachment.25
the tenor of said order evidently considers the latter
to have acted in bad faith by resorting to a deliberate
strategy to mislead the court. Thus – Petitioner is therefore barred by the principle of
conclusiveness of judgment from again invoking
good faith in the application for the issuance of the
In the hearings of the motion, and oral arguments of
writ. Similarly, in the case of Hanil Development Co.,
counsels before the Court, it appears that plaintiff
Ltd. v. Court of Appeals,26 the Court debunked the
BANK through its contracting officers Vice President
claim of good faith by a party who maliciously sought
Corazon B. Nepomuceno and Executive Vice
the issuance of a writ of attachment, the bad faith of
President Jose Ramon F. Revilla, personally
said party having been previously determined in a
transacted with defendant mainly through
final decision which voided the assailed writ. Thus –
defendant’s permanent residence in METRO-
MANILA, either in defendant’s home address in
Quezon City or his main business address at the Apropos the Application for Judgment on the
Romulo Mabanta Buenaventura Sayoc & Delos Attachment Bond, Escobar claims in its petition that
Angeles in MAKATI and while at times follow ups the award of attorney’s fees and injunction bond

3
premium in favor of Hanil is [contrary] to law and is still not entitled to the issuance of a writ of
jurisprudence. It contends that no malice or bad faith attachment.
may be imputed to it in procuring the writ.
The circumstances under which a writ of preliminary
Escobar’s protestation is now too late in the day. attachment may be issued are set forth in Section 1,
The question of the illegality of the attachment and Rule 57 of the Rules of Court, to wit:
Escobar’s bad faith in obtaining it has long been
settled in one of the earlier incidents of this case. SEC. 1. Grounds upon which attachment may issue.
The Court of Appeals, in its decision rendered on — At the commencement of the action or at any time
February 3, 1983 in C.A.-G.R. No. SP-14512, voided before entry of judgment, a plaintiff or any proper
the challenged writ, having been issued with grave party may have the property of the adverse party
abuse of discretion. Escobar’s bad faith in procuring attached as security for the satisfaction of any
the writ cannot be doubted. Its Petition for the judgment that may be recovered in the following
Issuance of Preliminary Attachment made such cases:
damning allegations that: Hanil was already able to
secure a complete release of its final collection from (a) In an action for the recovery of a
the MPWH; it has moved out some of its heavy specified amount of money or damages,
equipments for unknown destination, and it may other than moral and exemplary, on a cause
leave the country anytime. Worse, its Ex of action arising from law, contract, quasi-
Parte  Motion to Resolve Petition alleged that "after contract, delict or quasi-delict against a party
personal verification by (Escobar) of (Hanil’s) who is about to depart from the Philippines
equipment in Cagayan de Oro City, it appears that with intent to defraud his creditors;
the equipments were no longer existing from their
compound." All these allegations of Escobar were
found to be totally baseless and untrue. (b) In an action for money or property
embezzled or fraudulently misapplied or
converted to his own use by a public officer,
Even assuming that the trial court did not make a or an officer of a corporation or an attorney,
categorical pronouncement of misrepresentation and factor, broker, agent, or clerk, in the course
suppression of material facts on the part of of his employment as such, or by any other
petitioner, the factual backdrop of this case does not person in a fiduciary capacity, or for a willful
support petitioner’s claim of good faith. The facts violation of duty;
and circumstances omitted are highly material and
relevant to the grant or denial of writ of attachment
applied for. (c) In an action to recover the possession of
personal property unjustly or fraudulently
taken, detained, or converted, when the
Finally, there is no merit in petitioner’s contention property, or any part thereof, has been
that respondent can be considered a resident who is concealed, removed, or disposed of to
temporarily out of the Philippines upon whom service prevent its being found or taken by the
of summons may be effected by publication, and applicant or an authorized person;
therefore qualifies as among those against whom a
writ of attachment may be issued under Section 1,
paragraph (f), Rule 57 of the Rules of Court which (d) In an action against a party who has
provides: been guilty of a fraud in contracting the debt
or incurring the obligation upon which the
action is brought, or in the performance
(f) In an action against a party x x x on whom thereof;
summons may be served by publication.
(e) In an action against a party who has
In so arguing, petitioner attempts to give the removed or disposed of his property, or is
impression that although it erroneously invoked the about to do so, with intent to defraud his
ground that respondent does not reside in the creditors;
Philippines, it should not be made to pay damages
because it is in fact entitled to a writ of attachment
had it invoked the proper ground under Rule 57. (f) In an action against a party who resides
However, even on this alternative ground, petitioner out of the Philippines, or on whom summons
may be served by publication.

4
The purposes of preliminary attachment are: (1) to sending by registered mail of the copy of the
seize the property of the debtor in advance of final summons and the court order to the last known
judgment and to hold it for purposes of satisfying address of the defendant; or (c) in any other manner
said judgment, as in the grounds stated in which the court may deem sufficient.
paragraphs (a) to (e) of Section 1, Rule 57 of the
Rules of Court; or (2) to acquire jurisdiction over the In Montalban v. Maximo,31 however, the Court held
action by actual or constructive seizure of the that substituted service of summons (under the
property in those instances where personal or present Section 7, Rule 14 of the Rules of Court) is
substituted service of summons on the defendant the normal mode of service of summons that will
cannot be effected, as in paragraph (f) of the same confer jurisdiction on the court over the person of
provision.27 residents temporarily out of the Philippines.
Meaning, service of summons may be effected by
Corollarily, in actions in personam, such as the (a) leaving copies of the summons at the
instant case for collection of sum of defendant’s residence with some person of suitable
money,28 summons must be served by personal or discretion residing therein, or (b) by leaving copies at
substituted service, otherwise the court will not the defendant’s office or regular place of business
acquire jurisdiction over the defendant. In case the with some competent person in charge
defendant does not reside and is not found in the thereof.32 Hence, the court may acquire jurisdiction
Philippines (and hence personal and substituted over an action in personam by mere substituted
service cannot be effected), the remedy of the service without need of attaching the property of the
plaintiff in order for the court to acquire jurisdiction to defendant.
try the case is to convert the action into a
proceeding in rem  or quasi in rem by attaching the The rationale in providing for substituted service as
property of the defendant.29 Thus, in order to acquire the normal mode of service for residents temporarily
jurisdiction in actions in personam where defendant out of the Philippines, was expounded in Montalban
resides out of and is not found in the Philippines, it v. Maximo,33 in this wise:
becomes a matter of course for the court to convert
the action into a proceeding in rem or quasi in rem A man temporarily absent from this country leaves a
by attaching the defendant’s property. The service of definite place of residence, a dwelling where he
summons in this case (which may be by publication lives, a local base, so to speak, to which any inquiry
coupled with the sending by registered mail of the about him may be directed and where he is bound to
copy of the summons and the court order to the last return. Where one temporarily absents himself, he
known address of the defendant), is no longer for the leaves his affairs in the hands of one who may be
purpose of acquiring jurisdiction but for compliance reasonably expected to act in his place and stead; to
with the requirements of due process.30 do all that is necessary to protect his interests; and
to communicate with him from time to time any
However, where the defendant is a resident who is incident of importance that may affect him or his
temporarily out of the Philippines, attachment of business or his affairs. It is usual for such a man to
his/her property in an action in personam, is not leave at his home or with his business associates
always necessary in order for the court to acquire information as to where he may be contacted in the
jurisdiction to hear the case. event a question that affects him crops up.

Section 16, Rule 14 of the Rules of Court reads: Thus, in actions in personam against residents
temporarily out of the Philippines, the court need not
Sec. 16. Residents temporarily out of the always attach the defendant’s property in order to
Philippines. – When an action is commenced against have authority to try the case. Where the plaintiff
a defendant who ordinarily resides within the seeks to attach the defendant’s property and to
Philippines, but who is temporarily out of it, service resort to the concomitant service of summons by
may, by leave of court, be also effected out of the publication, the same must be with prior leave,
Philippines, as under the preceding section. precisely because, if the sole purpose of the
attachment is for the court to acquire jurisdiction, the
The preceding section referred to in the above latter must determine whether from the allegations in
provision is Section 15 which provides for the complaint, substituted service (to persons of
extraterritorial service – (a) personal service out of suitable discretion at the defendant’s residence or to
the Philippines, (b) publication coupled with the a competent person in charge of his office or regular

5
place of business) will suffice, or whether there is a Nevertheless, nominal damages may be awarded to
need to attach the property of the defendant and a plaintiff whose right has been violated or invaded
resort to service of summons by publication in order by the defendant, for the purpose of vindicating or
for the court to acquire jurisdiction over the case and recognizing that right, and not for indemnifying the
to comply with the requirements of due process. plaintiff for any loss suffered by him. Its award is
thus not for the purpose of indemnification for a loss
In the instant case, it must be stressed that the writ but for the recognition and vindication of a right.
was issued by the trial court mainly on the Indeed, nominal damages are damages in name
representation of petitioner that respondent is not a only and not in fact.37 They are recoverable where
resident of the Philippines.34 Obviously, the trial some injury has been done but the pecuniary value
court’s issuance of the writ was for the sole purpose of the damage is not shown by evidence and are
of acquiring jurisdiction to hear and decide the case. thus subject to the discretion of the court according
Had the allegations in the complaint disclosed that to the circumstances of the case.38
respondent has a residence in Quezon City and an
office in Makati City, the trial court, if only for the In this case, the award of nominal damages is
purpose of acquiring jurisdiction, could have served proper considering that the right of respondent to
summons by substituted service on the said use his money has been violated by its garnishment.
addresses, instead of attaching the property of the The amount of nominal damages must, however, be
defendant. The rules on the application of a writ of reduced from ₱2 million to ₱50,000.00 considering
attachment must be strictly construed in favor of the the short period of 2 months during which the writ
defendant. For attachment is harsh, extraordinary, was in effect as well as the lack of evidence as to
and summary in nature; it is a rigorous remedy the amount garnished.1âwphi1
which exposes the debtor to humiliation and
annoyance.35 It should be resorted to only when Likewise, the award of attorney’s fees is proper
necessary and as a last remedy. when a party is compelled to incur expenses to lift a
wrongfully issued writ of attachment. The basis of
It is clear from the foregoing that even on the the award thereof is also the amount of money
allegation that respondent is a resident temporarily garnished, and the length of time respondents have
out of the Philippines, petitioner is still not entitled to been deprived of the use of their money by reason of
a writ of attachment because the trial court could the wrongful attachment.39 It may also be based
acquire jurisdiction over the case by substituted upon (1) the amount and the character of the
service instead of attaching the property of the services rendered; (2) the labor, time and trouble
defendant. The misrepresentation of petitioner that involved; (3) the nature and importance of the
respondent does not reside in the Philippines and its litigation and business in which the services were
omission of his local addresses was thus a rendered; (4) the responsibility imposed; (5) the
deliberate move to ensure that the application for the amount of money and the value of the property
writ will be granted. affected by the controversy or involved in the
employment; (6) the skill and the experience called
In light of the foregoing, the Court of Appeals for in the performance of the services; (7) the
properly sustained the finding of the trial court that professional character and the social standing of the
petitioner is liable for damages for the wrongful attorney; (8) the results secured, it being a
issuance of a writ of attachment against respondent. recognized rule that an attorney may properly
charge a much larger fee when it is contingent than
when it is not.40
Anent the actual damages, the Court of Appeals is
correct in not awarding the same inasmuch as the
respondent failed to establish the amount garnished All the aforementioned weighed, and considering the
by petitioner. It is a well settled rule that one who short period of time it took to have the writ lifted, the
has been injured by a wrongful attachment can favorable decisions of the courts below, the absence
recover damages for the actual loss resulting of evidence as to the professional character and the
therefrom. But for such losses to be recoverable, social standing of the attorney handling the case and
they must constitute actual damages duly the amount garnished, the award of attorney’s fees
established by competent proofs, which are, should be fixed not at ₱1 Million, but only at
however, wanting in the present case.36 ₱200,000.00.

6
The courts below correctly awarded moral damages SO ORDERED.
on account of petitioner’s misrepresentation and bad
faith; however, we find the award in the amount of
₱5 Million excessive. Moral damages are to be fixed
upon the discretion of the court taking into
consideration the educational, social and financial
standing of the parties.41 Moral damages are not
intended to enrich a complainant at the expense of a
defendant.42 They are awarded only to enable the
injured party to obtain means, diversion or
amusements that will serve to obviate the moral
suffering he has undergone, by reason of petitioner’s
culpable action. Moral damages must be
commensurate with the loss or injury suffered.
Hence, the award of moral damages is reduced to
₱500,000.00.

Considering petitioner’s bad faith in securing the writ

of attachment, we sustain the award of exemplary
damages by way of example or correction for public
good. This should deter parties in litigations from
resorting to baseless and preposterous allegations
to obtain writs of attachments. While as a general
rule, the liability on the attachment bond is limited to
actual (or in some cases, temperate or nominal)
damages, exemplary damages may be recovered
where the attachment was established to be
maliciously sued out.43 Nevertheless, the award of
exemplary damages in this case should be reduced
from ₱5M to ₱500,000.00.

Finally, contrary to the claim of petitioner, the instant

case for damages by reason of the invalid issuance
of the writ, survives the dismissal of the main case
for sum of money. Suffice it to state that the claim for
damages arising from such wrongful attachment
may arise and be decided separately from the merits
of the main action.44

WHEREFORE, the petition is PARTIALLY

GRANTED. The May 31, 2006 Decision of the Court
of Appeals in CA-G.R. CV No. 78200 is AFFIRMED
with MODIFICATIONS. As modified, petitioner
Philippine Commercial International Bank is ordered
to pay respondent Joseph Anthony M. Alejandro the
following amounts: ₱50,000.00 as nominal
damages, ₱200,000.00 as attorney’s fees; and
₱500,000.00 as moral damages, and ₱500,000.00
as exemplary damages, to be satisfied against the
attachment bond issued by Prudential Guarantee &
Assurance Inc.,45 under JCL (4) No. 01081, Bond
No. HO-46764-97.

No pronouncement as to costs.

7
EN BANC 3. On May 11, 1989 the attachment bond having
been submitted by Davao Light, the writ of
attachment issued.

4. On May 12, 1989, the summons and a copy of the

G.R. No. 93262 December 29, 1991 complaint, as well as the writ of attachment and a
copy of the attachment bond, were served on
defendants Queensland and Adarna; and pursuant
DAVAO LIGHT & POWER CO., INC., petitioner, to the writ, the sheriff seized properties belonging to
vs. the latter.
THE COURT OF APPEALS, QUEENSLAND
HOTEL or MOTEL or QUEENSLAND TOURIST
INN, and TEODORICO ADARNA, respondents. 5. On September 6, 1989, defendants Queensland
and Adarna filed a motion to discharge the
attachment for lack of jurisdiction to issue the same
Breva & Breva Law Offices for petitioner. because at the time the order of attachment was
promulgated (May 3, 1989) and the attachment writ
Goc-Ong & Associates for private respondents. issued (May 11, 1989), the Trial Court had not yet
acquired jurisdiction over the cause and over the
persons of the defendants.

6. On September 14, 1989, Davao Light filed an

NARVASA, J.: opposition to the motion to discharge attachment.

Subject of the appellate proceedings at bar is the 7. On September 19, 1989, the Trial Court issued an
decision of the Court of Appeals in CA-G.R. Sp. No. Order denying the motion to discharge.
1967 entitled "Queensland Hotel, Inc., etc. and
Adarna v. Davao Light & Power Co., Inc.," This Order of September 19, 1989 was successfully
promulgated on May 4, 1990. 1 That decision challenged by Queensland and Adarna in a special
nullified and set aside the writ of preliminary civil action of certiorari instituted by them in the
attachment issued by the Regional Trial Court of Court of Appeals. The Order was, as aforestated,
Davao City 2 in Civil Case No. 19513-89 on annulled by the Court of Appeals in its Decision of
application of the plaintiff (Davao Light & Power May 4, 1990. The Appellate Court's decision closed
Co.), before the service of summons on the with the following disposition:
defendants (herein respondents Queensland Co.,
Inc. and Adarna). . . . the Orders dated May 3, 1989 granting
the issuance of a writ of preliminary
Following is the chronology of the undisputed attachment, dated September 19, 1989
material facts culled from the Appellate Tribunal's denying the motion to discharge attachment;
judgment of May 4, 1990. dated November 7, 1989 denying
petitioner's motion for reconsideration; as
1. On May 2, 1989 Davao Light & Power Co., Inc. well as all other orders emanating therefrom,
(hereafter, simply Davao Light) filed a verified specially the Writ of Attachment dated May
complaint for recovery of a sum of money and 11, 1989 and Notice of Levy on Preliminary
damages against Queensland Hotel, etc. and Attachment dated May 11, 1989, are hereby
Teodorico Adarna (docketed as Civil Case No. declared null and void and the attachment
19513-89). The complaint contained an ex hereby ordered DISCHARGED.
parte application for a writ of preliminary attachment.
The Appellate Tribunal declared that —
2. On May 3, 1989 Judge Nartatez, to whose branch
the case was assigned by raffle, issued an Order . . . While it is true that a prayer for the
granting the ex parte application and fixing the issuance of a writ of preliminary attachment
attachment bond at P4,600,513.37. may be included m the complaint, as is
usually done, it is likewise true that the Court
does not acquire jurisdiction over the person

8
 of the defendant until he is duly summoned his submission to the court's power and authority —
or voluntarily appears, and adding the that jurisdiction is acquired by the court over his
phrase that it be issued "ex parte" does not person. 7 On the other hand, jurisdiction over the
confer said jurisdiction before actual person of the defendant is obtained, as above
summons had been made, nor retroact stated, by the service of summons or other coercive
jurisdiction upon summons being made. . . . process upon him or by his voluntary submission to
the authority of the court. 8
It went on to say, citing Sievert v. Court of
Appeals, 3 that "in a proceedings in attachment," the The events that follow the filing of the complaint as a matter of routine are well known. After
the complaint is filed, summons issues to the defendant, the summons is then transmitted
"critical time which must be identified is . . . when the
to the sheriff, and finally, service of the summons is effected on the defendant in any of the
trial court acquires authority under law to act
ways authorized by the Rules of Court. There is thus ordinarily some appreciable interval of
coercively against the defendant or his property . . .;"
time between the day of the filing of the complaint and the day of service of summons of
and that "the critical time is the of the vesting of
the defendant. During this period, different acts may be done by the plaintiff or by the
jurisdiction in the court over the person of the
Court, which are unquestionable validity and propriety. Among these, for example, are the
defendant in the main case."
appointment of a guardian ad litem, 9
 the grant of authority to the
Reversal of this Decision of the Court of Appeals of plaintiff to prosecute the suit as a pauper
May 4, 1990 is what Davao Light seeks in the litigant, 10 the amendment of the complaint by the
present appellate proceedings. plaintiff as a matter of right without leave of
court, 11 authorization by the Court of service of
summons by publication, 12 the dismissal of the
The question is whether or not a writ of preliminary
action by the plaintiff on mere notice. 13
attachment may issue ex parte against a defendant
before acquisition of jurisdiction of the latter's person
This, too, is true with regard to the provisional remedies of preliminary attachment,
by service of summons or his voluntary submission
preliminary injunction, receivership or replevin. 14
to the Court's authority.  They may be validly
and properly applied for and granted even before the
defendant is summoned or is heard from.
The Court rules that the question must be answered
in the affirmative and that consequently, the petition
for review will have to be granted. A preliminary attachment may be defined,
paraphrasing the Rules of Court, as the provisional
remedy in virtue of which a plaintiff or other party
It is incorrect to theorize that after an action or
may, at the commencement of the action or at any
proceeding has been commenced and jurisdiction
time thereafter, have the property of the adverse
over the person of the plaintiff has been vested in
party taken into the custody of the court as security
the court, but before the acquisition of jurisdiction
for the satisfaction of any judgment that may be
over the person of the defendant (either by service
recovered. 15 It is a remedy which is purely statutory
of summons or his voluntary submission to the
in respect of which the law requires a strict
court's authority), nothing can be validly done by the
construction of the provisions granting it. 16 Withal no
plaintiff or the court. It is wrong to assume that the
principle, statutory or jurisprudential, prohibits its
validity of acts done during this period should be
issuance by any court before acquisition of
defendant on, or held in suspension until, the actual
jurisdiction over the person of the defendant.
obtention of jurisdiction over the defendant's person.
The obtention by the court of jurisdiction over the
person of the defendant is one thing; quite another is Rule 57 in fact speaks of the grant of the remedy "at
the acquisition of jurisdiction over the person of the the commencement of the action or at any time
plaintiff or over the subject-matter or nature of the thereafter." 17 The phase, "at the commencement of
action, or the res or object hereof. the action," 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
An action or proceeding is commenced by the filing
action;" 18 and the reference plainly is to a time
of the complaint or other initiatory pleading. 4 By that act,
the jurisdiction of the court over the subject matter or nature of the action or proceeding is before summons is served on the defendant, or even
invoked or called into activity; 5 before summons issues. What the rule is saying
 and it is thus that the court
quite clearly is that after an action is properly
acquires jurisdiction over said subject matter or
commenced — by the filing of the complaint and the
nature of the action. 6 And it is by that self-same act
payment of all requisite docket and other fees — the
of the plaintiff (or petitioner) of filing the complaint (or
plaintiff may apply for and obtain a writ of preliminary
other appropriate pleading) — by which he signifies

9
attachment upon fulfillment of the pertinent defendants of the commencement of the suit against
requisites laid down by law, and that he may do so them and the probable seizure of their properties,
at any time, either before or after service of and thus give them the advantage of time to hide
summons on the defendant. And this indeed, has their assets, leaving the creditor-plaintiff holding the
been the immemorial practice sanctioned by the proverbial empty bag; it would place the creditor-
courts: for the plaintiff or other proper party to applicant in danger of losing any security for a
incorporate the application for attachment in the favorable judgment and thus give him only an
complaint or other appropriate pleading (counter- illusory victory.
claim, cross-claim, third-party claim) and for the Trial
Court to issue the writ ex-parte at the Withal, ample modes of recourse against a
commencement of the action if it finds the preliminary attachment are secured by law to the
application otherwise sufficient in form and defendant. The relative ease with which a
substance. preliminary attachment may be obtained is matched
and paralleled by the relative facility with which the
In Toledo v. Burgos, 19 this Court ruled that a hearing attachment may legitimately be prevented or
on a motion or application for preliminary attachment frustrated. These modes of recourse against
is not generally necessary unless otherwise directed preliminary attachments granted by Rule 57 were
by the Trial Court in its discretion. 20 And in Filinvest discussed at some length by the separate opinion
Credit Corporation v. Relova, 21 the Court declared in Mindanao Savings & Loans Asso. Inc. v.
that "(n)othing in the Rules of Court makes notice CA., supra.
and hearing indispensable and mandatory requisites
for the issuance of a writ of attachment." The only That separate opinion stressed that there are two (2)
pre-requisite is that the Court be satisfied, upon ways of discharging an attachment: first, by the
consideration of "the affidavit of the applicant or of posting of a counterbond; and second, by a showing
some other person who personally knows the facts, of its improper or irregular issuance.
that a sufficient cause of action exists, that the case
is one of those mentioned in Section 1 . . . (Rule 57), 1.0. The submission of a counterbond is an
that there is no other sufficient security for the claim efficacious mode of lifting an attachment already
sought to be enforced by the action, and that the enforced against property, or even of preventing its
amount due to the applicant, or the value of the enforcement altogether.
property the possession of which he is entitled to
recover, is as much as the sum for which the order
(of attachment) is granted above all legal 1.1. When property has already been seized under
counterclaims." 22 If the court be so satisfied, the attachment, the attachment may be discharged upon
"order of attachment shall be granted," 23 and the writ counterbond in accordance with Section 12 of Rule
shall issue upon the applicant's posting of "a bond 57.
executed to the adverse party in an amount to be
fixed by the judge, not exceeding the plaintiffs claim, Sec. 12. Discharge of attachment upon
conditioned that the latter will pay all the costs which giving counterbond. — At any time after an
may be adjudged to the adverse party and all order of attachment has been granted, the
damages which he may sustain by reason of the party whose property has been attached or
attachment, if the court shall finally adjudge that the the person appearing in his behalf, may,
applicant was not entitled thereto." 24 upon reasonable notice to the applicant,
apply to the judge who granted the order, or
In Mindanao Savings & Loan Association, Inc. v. Court of Appeals, decided on April 18, to the judge of the court in which the action
1989, 25
 this Court had occasion to emphasize the is pending, for an order discharging the
postulate that no hearing is required on an attachment wholly or in part on the security
application for preliminary attachment, with notice to given . . . in an amount equal to the value of
the defendant, for the reason that this "would defeat the property attached as determined by the
the objective of the remedy . . . (since the) time judge to secure the payment of any
which such a hearing would take, could be enough judgment that the attaching creditor may
to enable the defendant to abscond or dispose of his recover in the action. . . .
property before a writ of attachment issues." As
observed by a former member of this Court, 26 such 1.2. But even before actual levy on property, seizure
a procedure would warn absconding debtors- under attachment may be prevented also upon
counterbond. The defendant need not wait until his

10
property is seized before seeking the discharge of This is so because "(a)s pointed out in Calderon v.
the attachment by a counterbond. This is made I.A.C., 155 SCRA 531 (1987), The attachment
possible by Section 5 of Rule 57. debtor cannot be deemed to have waived any defect
in the issuance of the attachment writ by simply
Sec. 5. Manner of attaching property. — The availing himself of one way of discharging the
officer executing the order shall without attachment writ, instead of the other. Moreover, the
delay attach, to await judgment and filing of a counterbond is a speedier way of
execution in the action, all the properties of discharging the attachment writ maliciously sought
the party against whom the order is issued out by the attaching creditor instead of the other
in the province, not exempt from execution, way, which, in most instances . . . would require
or so much thereof as may be sufficient to presentation of evidence in a fullblown trial on the
satisfy the applicant's demand, unless the merits, and cannot easily be settled in a pending
former makes a deposit with the clerk or incident of the case." 27
judge of the court from which the order
It may not be amiss to here reiterate other related principles dealt with in Mindanao
issued, or gives a counter-bond executed to
Savings & Loans Asso. Inc. v. C.A., supra., 28
the applicant, in an amount sufficient to  to wit:
satisfy such demand besides costs, or in an
amount equal to the value of the property (a) When an attachment may not be
which is about to be attached, to secure dissolved by a showing of its irregular or
payment to the applicant of any judgment improper issuance:
which he may recover in the action. . . .
(Emphasis supplied) . . . (W)hen the preliminary attachment is
issued upon a ground which is at the same
2.0. Aside from the filing of a counterbond, a time the applicant's cause of action; e.g., "an
preliminary attachment may also be lifted or action for money or property embezzled or
discharged on the ground that it has been irregularly fraudulently misapplied or converted to his
or improperly issued, in accordance with Section 13 own use by a public officer, or an officer of a
of Rule 57. Like the first, this second mode of lifting corporation, or an attorney, factor, broker,
an attachment may be resorted to even before any agent, or clerk, in the course of his
property has been levied on. Indeed, it may be employment as such, or by any other person
availed of after property has been released from a in a fiduciary capacity, or for a willful
levy on attachment, as is made clear by said Section violation of duty." (Sec. 1 [b], Rule 57), or
13, viz.: "an action against a party who has been
guilty of fraud m contracting the debt or
Sec. 13. Discharge of attachment for incurring the obligation upon which the
improper or irregular issuance. — The party action is brought" (Sec. 1 [d], Rule 57), the
whose property has been attached may defendant is not allowed to file a motion to
also, at any time either BEFORE or AFTER dissolve the attachment under Section 13 of
the release of the attached property, or Rule 57 by offering to show the falsity of the
before any attachment shall have been factual averments in the plaintiff's application
actually levied, upon reasonable notice to and affidavits on which the writ was based
the attaching creditor, apply to the judge — and consequently that the writ based
who granted the order, or to the judge of the thereon had been improperly or irregularly
court in which the action is pending, for an issued (SEE Benitez v. I.A.C., 154 SCRA
order to discharge the attachment on the 41) — the reason being that the hearing on
ground that the same was improperly or such a motion for dissolution of the writ
irregularly issued. If the motion be made on would be tantamount to a trial of the merits
affidavits on the part of the party whose of the action. In other words, the merits of
property has been attached, but not the action would be ventilated at a mere
otherwise, the attaching creditor may hearing of a motion, instead of at the regular
oppose the same by counter-affidavits or trial. Therefore, when the writ of attachment
other evidence in addition to that on which is of this nature, the only way it can be
the attachment was made. . . . (Emphasis dissolved is by a counterbond (G.B. Inc. v.
supplied) Sanchez, 98 Phil. 886).

11
(b) Effect of the dissolution of a preliminary opportunity to prevent attachment of his property by
attachment on the plaintiffs attachment bond: the posting of a counterbond in an amount equal to
the plaintiff's claim in the complaint pursuant to
. . . The dissolution of the preliminary Section 5 (or Section 12), Rule 57, or dissolving it by
attachment upon security given, or a causing dismissal of the complaint itself on any of
showing of its irregular or improper the grounds set forth in Rule 16, or demonstrating
issuance, does not of course operate to the insufficiency of the applicant's affidavit or bond in
discharge the sureties on plaintiff's own accordance with Section 13, Rule 57.
attachment bond. The reason is simple. That
bond is "executed to the adverse party, . . . It was on account of the failure to comply with this
conditioned that the . . . (applicant) will pay fundamental requirement of service of summons and
all the costs which may be adjudged to the the other documents above indicated that writs of
adverse party and all damages which he attachment issued by the Trial Court ex parte were
may sustain by reason of the attachment, if struck down by this Court's Third Division in two (2)
the court shall finally adjudge that the cases, namely: Sievert v. Court of
applicant was not entitled thereto" (SEC. 4, Appeals, 31 and BAC Manufacturing and Sales
Rule 57). Hence, until that determination is Corporation v. Court of Appeals, et al. 32 In contrast
made, as to the applicant's entitlement to the to the case at bar — where the summons and a
attachment, his bond must stand and cannot copy of the complaint, as well as the order and writ
be with-drawn. of attachment and the attachment bond were served
on the defendant — in Sievert, levy on attachment
With respect to the other provisional remedies, i.e., was attempted notwithstanding that only the petition
preliminary injunction (Rule 58), receivership (Rule for issuance of the writ of preliminary attachment
59), replevin or delivery of personal property (Rule was served on the defendant, without any prior or
60), the rule is the same: they may also issue ex accompanying summons and copy of the complaint;
parte. 29 and in BAC Manufacturing and Sales Corporation,
neither the summons nor the order granting the
It goes without saying that whatever be the acts done by the Court prior to the acquisition preliminary attachment or the writ of attachment
of jurisdiction over the person of defendant, as above indicated — issuance of summons, itself was served on the defendant "before or at the
order of attachment and writ of attachment (and/or appointments of guardian ad litem, or time the levy was made."
grant of authority to the plaintiff to prosecute the suit as a pauper litigant, or amendment of
the complaint by the plaintiff as a matter of right without leave of court 30
 — and For the guidance of all concerned, the Court
however valid and proper they might otherwise be, reiterates and reaffirms the proposition that writs of
these do not and cannot bind and affect the attachment may properly issue ex parte provided
defendant until and unless jurisdiction over his that the Court is satisfied that the relevant requisites
person is eventually obtained by the court, either by therefor have been fulfilled by the applicant,
service on him of summons or other coercive although it may, in its discretion, require prior
process or his voluntary submission to the court's hearing on the application with notice to the
authority. Hence, when the sheriff or other proper defendant; but that levy on property pursuant to the
officer commences implementation of the writ of writ thus issued may not be validly effected unless
attachment, it is essential that he serve on the preceded, or contemporaneously accompanied, by
defendant not only a copy of the applicant's affidavit service on the defendant of summons, a copy of the
and attachment bond, and of the order of complaint (and of the appointment of guardian ad
attachment, as explicity required by Section 5 of litem, if any), the application for attachment (if not
Rule 57, but also the summons addressed to said incorporated in but submitted separately from the
defendant as well as a copy of the complaint and complaint), the order of attachment, and the
order for appointment of guardian ad litem, if any, as plaintiff's attachment bond.
also explicity directed by Section 3, Rule 14 of the
Rules of Court. Service of all such documents is WHEREFORE, the petition is GRANTED; the
indispensable not only for the acquisition of challenged decision of the Court of Appeals is
jurisdiction over the person of the defendant, but hereby REVERSED, and the order and writ of
also upon considerations of fairness, to apprise the attachment issued by Hon. Milagros C. Nartatez,
defendant of the complaint against him, of the Presiding Judge of Branch 8, Regional Trial Court of
issuance of a writ of preliminary attachment and the Davao City in Civil Case No. 19513-89 against
grounds therefor and thus accord him the Queensland Hotel or Motel or Queensland Tourist

12
Inn and Teodorico Adarna are hereby
REINSTATED. Costs against private respondents.

SO ORDERED.

13
THIRD DIVISION The following day, that is, on September 20, 1990, a
copy of the writ of preliminary attachment, the order
 G.R. No. 102448 August 5, 1992 dated August 24, 1990, the summons and the
complaint were all simultaneously served upon the
private respondents at their residence. Immediately
RICARDO CUARTERO, petitioner,
thereafter, Deputy Sheriff Ernesto L. Sula levied,
vs.
attached and pulled out the properties in compliance
COURT OF APPEALS, ROBERTO EVANGELISTA
with the court's directive to attach all the properties
and FELICIA EVANGELISTA, respondents.
of private respondents not exempt from execution, or
so much thereof as may be sufficient to satisfy the
Abesamis, Medialdea & Abesamis for petitioner. petitioner's principal claim in the amount of
P2,171,794.91.
Eufemio Law Offices for private respondent.
Subsequently, the spouses Evangelista filed motion
to set aside the order dated August 24, 1990 and
discharge the writ of preliminary attachment for
GUTIERREZ, JR., J.: having been irregularly and improperly issued. On
October 4, 1990, the lower court denied the motion
This is a petition for review on certiorari seeking to for lack of merit.
annul the decision of the Court of Appeals
promulgated on June 27, 1991 as well as the Private respondents, then, filed a special civil action
subsequent resolution dated October 22, 1991 for certiorari with the Court of Appeals questioning
denying the motion for reconsideration in CA-G.R. the orders of the lower court dated August 24, 1990
SP No. 23199 entitled "Spouses Roberto and Felicia and October 4, 1990 with a prayer for a restraining
Evangelista v. Honorable Cezar C. Peralejo, order or writ of preliminary injunction to enjoin the
Presiding Judge Regional Trial Court of Quezon judge from taking further proceedings below.
City, Branch 98, and Ricardo Cuartero," which
nullified the orders of the trial court dated August 24, In a Resolution dated October 31, 1990, the Court of
1990 and October 4, 1990 and cancelled the writ of Appeals resolved not to grant the prayer for
preliminary attachment issued on September 19, restraining order or writ of preliminary injunction,
1990. there being no clear showing that the spouses
Evangelista were entitled thereto.
Following are the series of events giving rise to the
present controversy. On June 27, 1991, the Court of Appeals granted the
petition for certiorari and rendered the questioned
On August 20, 1990, petitioner Ricardo Cuartero decision. The motion for reconsideration filed by
filed a complaint before the Regional Trial Court of herein petitioner Cuartero was denied for lack of
Quezon City against the private respondents, merit in a resolution dated October 22, 1991. Hence,
Evangelista spouses, for a sum of money plus the present recourse to this Court.
damages with a prayer for the issuance of a writ of
preliminary attachment. The complaint was docketed The petitioner raises the following assignment of
as Civil Case No. Q-90-6471. errors:

On August 24, 1990, the lower court issued an order I

granting ex-parte the petitioner's prayer for the
issuance of a writ of preliminary attachment. THE COURT OF APPEALS ERRED
AND COMMITTED A GRAVE
On September 19, 1990, the writ of preliminary ABUSE OF DISCRETION,
attachment was issued pursuant to the trial court's AMOUNTING TO LACK OF
order dated August 24, 1990. On the same day, the JURISDICTION WHEN IT HELD
summons for the spouses Evangelista was likewise THAT THE REGIONAL TRIAL
prepared. COURT DID NOT ACQUIRE
JURISDICTION OVER
RESPONDENT SPOUSES.

14
 II jurisdiction, no proper ground also existed for the
issuance of the writ of preliminary attachment. They
THE COURT OF APPEALS ERRED stress that the fraud in contracting the debt or
AND ACTED WITH GRAVE ABUSE incurring the obligation upon which the action is
OF DISCRETION WHEN IT HELD brought which comprises a ground for attachment
THAT THE REGIONAL TRIAL must have already been intended at the inception of
COURT COULD NOT VALIDLY the contract. According to them, there was no intent
ISSUE THE SUBJECT WRIT OF to defraud the petitioner when the postdated checks
PRELIMINARY ATTACHMENT were issued inasmuch as the latter was aware that
WHICH IS AN ANCILLARY the same were not yet funded and that they were
REMEDY. (Rollo, p. 13) issued only for purposes of creating an evidence to
prove a pre-existing obligation.
The Court of Appeals' decision is grounded on its
finding that the trial court did not acquire any Another point which the private respondents raised
jurisdiction over the person of the defendants in their comment is the alleged violation of their
(private respondents herein). It declared that: constitutionally guaranteed right to due process
when the writ was issued without notice and hearing.
. . . the want of jurisdiction of the trial
court to proceed in the main case as In the later case of Davao Light and Power Co., Inc.
well as the ancillary remedy of v. Court of Appeals, G.R. No. 93262, November 29,
attachment is quite clear. It is not 1991, we had occasion to deal with certain
disputed that neither service of misconceptions which may have arisen from
summons with a copy of the our Sievert ruling. The question which was resolved
complaint nor voluntary appearance in the Davao Light  case is whether or not a writ of
of petitioners was had in this case preliminary attachment may issue ex-parte against a
before the trial court issued the defendant before the court acquires jurisdiction over
assailed order dated August 24, the latter's person by service of summons or his
1990, as well as the writ of voluntary submission to the court's authority. The
preliminary attachment dated Court answered in the affirmative. This should have
September 19, 1990. This is clarified the matter but apparently another ruling is
reversible error and must be necessary.
corrected on certiorari. (Rollo, p. 24)
A writ of preliminary attachment is defined as a
The appellate tribunal relied on the case of Sievert provisional remedy issued upon order of the court
v. Court of Appeals, 168 SCRA 692 (1988) in where an action is pending to be levied upon the
arriving at the foregoing conclusion. It stated that: property or properties of the defendant therein, the
same to be held thereafter by the sheriff as security
for the satisfaction of whatever judgment might be
Valid service of summons and a
secured in said action by the attaching creditor
copy of the complaint vest
against the defendant (Adlawan v. Tomol, 184
jurisdiction in the court over the
SCRA 31 [1990] citing Virata v. Aquino, 53 SCRA
defendant both for the purpose of
30-31 [1973]).
the main case and for purposes of
the ancillary remedy of attachment
and a court which has not acquired Under section 3, Rule 57 of the Rules of Court, the
jurisdiction over the person of only requisites for the issuance of the writ are the
defendant, cannot bind the affidavit and bond of the applicant. As has been
defendant whether in the main case expressly ruled in BF Homes, Inc. v. Court of
or in any ancillary proceeding such Appeals, 190 SCRA 262 (1990), citing Mindanao
as attachment proceedings (Sievert Savings and Loan Association, Inc. v. Court of
v. Court of Appeals, 168 SCRA Appeals, 172 SCRA 480 (1989), no notice to the
692). (Rollo, p. 24) adverse party or hearing of the application is
required inasmuch as the time which the hearing will
take could be enough to enable the defendant to
The private respondents, in their comment, adopted
abscond or dispose of his property before a writ of
and reiterated the aforementioned ruling of the Court
attachment issues. In such a case, a hearing would
of Appeals. They added that aside from the want of

15
render nugatory the purpose of this provisional during the period should be
remedy. The ruling remains good law. There is, thus, dependent on, or held in suspension
no merit in the private respondents' claim of violation until, the actual obtention of
of their constitutionally guaranteed right to due jurisdiction over the defendants
process. person. The obtention by the court
of jurisdiction over the person of the
The writ of preliminary attachment can be applied for defendant is one thing; quite another
and granted at the commencement of the action or is the acquisition of jurisdiction over
at any time thereafter (Section 1, Rule 57, Rules of the person of the plaintiff or over the
Court). In Davao Light and Power, Co., Inc. v. Court subject matter or nature of the
of Appeals, supra, the phrase "at the action, or the res or object thereof.
commencement of the action" is interpreted as
referring to the date of the filing of the complaint It is clear from our pronouncements that a writ of
which is a time before summons is served on the preliminary attachment may issue even before
defendant or even before summons issues. The summons is served upon the defendant. However,
Court added that — we have likewise ruled that the writ cannot bind and
affect the defendant. However, we have likewise
. . . after an action is properly ruled that the writ cannot bind and affect the
commenced — by filing of the defendant until jurisdiction over his person is
complaint and the payment of all eventually obtained. Therefore, it is required that
requisite docket and other fees — when the proper officer commences implementation
the plaintiff may apply and obtain a of the writ of attachment, service of summons should
writ of preliminary attachment upon be simultaneously made.
the fulfillment of the pertinent
requisites laid down by law, and that It must be emphasized that the grant of the
he may do so at any time, either provisional remedy of attachment practically involves
before or after service of summons three stages: first, the court issues the order granting
on the defendant. And this, indeed, the application; second, the writ of attachment
has been the immemorial practice issues pursuant to the order granting the writ; and
sanctioned by the courts: for the third, the writ is implemented. For the initial two
plaintiff or other proper party to stages, it is not necessary that jurisdiction over the
incorporate the application for person of the defendant should first be obtained.
attachment in the complaint or other However, once the implementation commences, it is
appropriate pleading (counter-claim, required that the court must have acquired
cross-claim, third-party-claim) and jurisdiction over the defendant for without such
for the Trial Court to issue the jurisdiction, the court has no power and authority to
writ ex-parte at the commencement act in any manner against the defendant. Any order
of the action if it finds the application issuing from the Court will not bind the defendant.
otherwise sufficient in form and
substance. In Sievert v. Court of Appeals, supra, cited by the
Court of Appeals in its questioned decision, the writ
The Court also pointed out that: of attachment issued ex-parte was struck down
because when the writ of attachment was being
. . . It is incorrect to theorize that implemented, no jurisdiction over the person of the
after an action or proceeding has defendant had as yet been obtained. The court had
been commenced and jurisdiction failed to serve the summons to the defendant.
over the person of the plaintiff has
been vested in the Court, but before The circumstances in Sievert  are different from
acquisition of jurisdiction over the those in the case at bar. When the writ of attachment
person of the defendant (either by was served on the spouses Evangelista, the
service of summons or his voluntary summons and copy of the complaint were also
submission to the Court's authority), simultaneously served.
nothing can be validly done by the
plaintiff or the Court. It is wrong to It is appropriate to reiterate this Court's exposition in
assume that the validity of acts done the Davao Light and Power case cited earlier, to wit:

16
 . . . writs of attachment may properly WHEREFORE, premises considered, the Court
issue ex-parte provided that the hereby GRANTS the petition. The challenged
Court is satisfied that the relevant decision of the Court of Appeals is REVERSED, and
requisites therefore have been the order and writ of attachment issued by Hon.
fulfilled by the applicant, although it Cezar C. Peralejo, Presiding Judge of Branch 98,
may, in its discretion, require prior Regional Trial Court of Quezon City against spouses
hearing on the application with Evangelista are hereby REINSTATED. No
notice to the defendant, but that levy pronouncement as to costs.
on property pursuant to the writ thus
issued may not be validly effected SO ORDERED.
unless preceded, or
contemporaneously accompanied SECOND DIVISION
by service on the defendant of
summons, a copy of the complaint
(and of the appointment of
guardian  ad litem, if any), the
application for attachment (if not
incorporated in but submitted
separately from the complaint), the
order of attachment, and the
plaintiff's attachment bond.

The question as to whether a proper ground existed

for the issuance of the writ is a question of fact the
determination of which can only be had in
appropriate proceedings conducted for the purpose
(Peroxide Philippines Corporation V. Court of
Appeals, 199 SCRA 882 [1991]). It must be noted
that the spouses Evangelista's motion to discharge
the writ of preliminary attachment was denied by the
lower court for lack of merit. There is no showing
that there was an abuse of discretion on the part of
the lower court in denying the motion.

Moreover, an attachment may not be dissolved by a

showing of its irregular or improper issuance if it is
upon a ground which is at the same time the
applicant's cause of action in the main case since an
anomalous situation would result if the issues of the
main case would be ventilated and resolved in a
mere hearing of a motion (Davao Light and Power
Co., Inc. v. Court of Appeals, supra, The
Consolidated Bank and Trust Corp. (Solidbank) v.
Court of Appeals, 197 SCRA 663 [1991]).

In the present case, one of the allegations in

petitioner's complaint below is that the defendant
spouses induced the plaintiff to grant the loan by
issuing postdated checks to cover the installment
payments and a separate set of postdated cheeks
for payment of the stipulated interest (Annex "B").
The issue of fraud, then, is clearly within the
competence of the lower court in the main action.
G.R. No. 124642             February 23, 2004

17
ALFREDO CHING and ENCARNACION complaint for sum of money with prayer for a writ of
CHING, petitioners preliminary attachment against the PBMCI to collect
vs. the ₱12,612,972.88 exclusive of interests, penalties
THE HON. COURT OF APPEALS and ALLIED and other bank charges. Impleaded as co-
BANKING CORPORATION, respondents. defendants in the complaint were Alfredo Ching,
Emilio Tañedo and Chung Kiat Hua in their capacity
DECISION as sureties of the PBMCI.

CALLEJO, SR., J.: The case was docketed as Civil Case No. 142729 in
the Regional Trial Court of Manila, Branch XVIII.10 In
its application for a writ of preliminary attachment,
This petition for review, under Rule 45 of the
the ABC averred that the "defendants are guilty of
Revised Rules of Court, assails the Decision 1 of the
fraud in incurring the obligations upon which the
Court of Appeals (CA) dated November 27, 1995 in
present action is brought11 in that they falsely
CA-G.R. SP No. 33585, as well as the
represented themselves to be in a financial position
Resolution2 on April 2, 1996 denying the petitioners’
to pay their obligation upon maturity thereof."12 Its
motion for reconsideration. The impugned decision
supporting affidavit stated, inter alia, that the
granted the private respondent’s petition
"[d]efendants have removed or disposed of their
for certiorari and set aside the Orders of the trial
properties, or [are] ABOUT to do so, with intent to
court dated December 15, 19933 and February 17,
defraud their creditors."13
19944 nullifying the attachment of 100,000 shares of
stocks of the Citycorp Investment Philippines under
the name of petitioner Alfredo Ching. On August 26, 1981, after an ex-parte hearing, the
trial court issued an Order denying the ABC’s
application for a writ of preliminary attachment. The
The following facts are undisputed:
trial court decreed that the grounds alleged in the
application and that of its supporting affidavit "are all
On September 26, 1978, the Philippine Blooming conclusions of fact and of law" which do not warrant
Mills Company, Inc. (PBMCI) obtained a loan of the issuance of the writ prayed for.14 On motion for
₱9,000,000.00 from the Allied Banking Corporation reconsideration, however, the trial court, in an Order
(ABC). By virtue of this loan, the PBMCI, through its dated September 14, 1981, reconsidered its
Executive Vice-President Alfredo Ching, executed a previous order and granted the ABC’s application for
promissory note for the said amount promising to a writ of preliminary attachment on a bond of
pay on December 22, 1978 at an interest rate of ₱12,700,000. The order, in relevant part, stated:
14% per annum.5 As added security for the said
loan, on September 28, 1978, Alfredo Ching,
With respect to the second ground relied upon for
together with Emilio Tañedo and Chung Kiat Hua,
the grant of the writ of preliminary attachment ex-
executed a continuing guaranty with the ABC
parte, which is the alleged disposal of properties by
binding themselves to jointly and severally
the defendants with intent to defraud creditors as
guarantee the payment of all the PBMCI obligations
provided in Sec. 1(e) of Rule 57 of the Rules of
owing the ABC to the extent of
Court, the affidavits can only barely justify the
₱38,000,000.00.6 The loan was subsequently
issuance of said writ as against the defendant
renewed on various dates, the last renewal having
Alfredo Ching who has allegedly bound himself
been made on December 4, 1980.7
jointly and severally to pay plaintiff the defendant
corporation’s obligation to the plaintiff as a surety
Earlier, on December 28, 1979, the ABC extended thereof.
another loan to the PBMCI in the amount of
₱13,000,000.00 payable in eighteen months at 16%
WHEREFORE, let a writ of preliminary attachment
interest per annum. As in the previous loan, the
issue as against the defendant Alfredo Ching
PBMCI, through Alfredo Ching, executed a
requiring the sheriff of this Court to attach all the
promissory note to evidence the loan maturing on
properties of said Alfredo Ching not exceeding
June 29, 1981.8 This was renewed once for a period
₱12,612,972.82 in value, which are within the
of one month.9
jurisdiction of this Court and not exempt from
execution upon, the filing by plaintiff of a bond duly
The PBMCI defaulted in the payment of all its loans. approved by this Court in the sum of Twelve Million
Hence, on August 21, 1981, the ABC filed a Seven Hundred Thousand Pesos (₱12,700,000.00)

18
executed in favor of the defendant Alfredo Ching to and/or control activities of individuals. Thus, it
secure the payment by plaintiff to him of all the costs directed the individual defendants to file their
which may be adjudged in his favor and all damages answers.22
he may sustain by reason of the attachment if the
court shall finally adjudge that the plaintiff was not Instead of filing an answer, Ching filed on January
entitled thereto. 14, 1984 a Motion to Suspend Proceedings on the
same ground of the pendency of SEC Case No.
SO ORDERED.15 2250. This motion met the opposition from the
ABC.23
Upon the ABC’s posting of the requisite bond, the
trial court issued a writ of preliminary attachment. On January 20, 1984, Tañedo filed his Answer with
Subsequently, summonses were served on the counterclaim and cross-claim.24 Ching eventually
defendants,16 save Chung Kiat Hua who could not filed his Answer on July 12, 1984.25
be found.
On October 25, 1984, long after submitting their
Meanwhile, on April 1, 1982, the PBMCI and Alfredo answers, Ching filed an Omnibus Motion,26 again
Ching jointly filed a petition for suspension of praying for the dismissal of the complaint or
payments with the Securities and Exchange suspension of the proceedings on the ground of the
Commission (SEC), docketed as SEC Case No. July 9, 1982 Injunctive Order issued in SEC Case
2250, at the same time seeking the PBMCI’s No. 2250. He averred that as a surety of the PBMCI,
rehabilitation.17 he must also necessarily benefit from the defenses
of his principal. The ABC opposed Ching’s omnibus
On July 9, 1982, the SEC issued an Order placing motion.
the PBMCI’s business, including its assets and
liabilities, under rehabilitation receivership, and Emilio Y. Tañedo, thereafter, filed his own Omnibus
ordered that "all actions for claims listed in Schedule Motion27 praying for the dismissal of the complaint,
"A" of the petition pending before any court or arguing that the ABC had "abandoned and waived"
tribunal are hereby suspended in whatever stage the its right to proceed against the continuing guaranty
same may be until further orders from the by its act of resorting to preliminary attachment.
Commission."18 The ABC was among the PBMCI’s
creditors named in the said schedule. On December 17, 1986, the ABC filed a Motion to
Reduce the amount of his preliminary attachment
Subsequently, on January 31, 1983, the PBMCI and bond from ₱12,700,000 to ₱6,350,000.28 Alfredo
Alfredo Ching jointly filed a Motion to Dismiss and/or Ching opposed the motion,29 but on April 2, 1987,
motion to suspend the proceedings in Civil Case No. the court issued an Order setting the incident for
142729 invoking the PBMCI’s pending application further hearing on May 28, 1987 at 8:30 a.m. for the
for suspension of payments (which Ching co-signed) parties to adduce evidence on the actual value of the
and over which the SEC had already assumed properties of Alfredo Ching levied on by the sheriff.30
jurisdiction.19 On February 4, 1983, the ABC filed its
Opposition thereto.20 On March 2, 1988, the trial court issued an Order
granting the motion of the ABC and rendered the
In the meantime, on July 26, 1983, the deputy sheriff attachment bond of ₱6,350,000.31
of the trial court levied on attachment the 100,000
common shares of Citycorp stocks in the name of On November 16, 1993, Encarnacion T. Ching,
Alfredo Ching.21 assisted by her husband Alfredo Ching, filed a
Motion to Set Aside the levy on attachment. She
Thereafter, in an Order dated September 16, 1983, alleged inter alia that the 100,000 shares of stocks
the trial court partially granted the aforementioned levied on by the sheriff were acquired by her and her
motion by suspending the proceedings only with husband during their marriage out of conjugal funds
respect to the PBMCI. It denied Ching’s motion to after the Citycorp Investment Philippines was
dismiss the complaint/or suspend the proceedings established in 1974. Furthermore, the indebtedness
and pointed out that P.D. No. 1758 only concerns covered by the continuing guaranty/comprehensive
the activities of corporations, partnerships and suretyship contract executed by petitioner Alfredo
associations and was never intended to regulate Ching for the account of PBMCI did not redound to

19
the benefit of the conjugal partnership. She, likewise, stocks and ordering the sheriff to return the said
alleged that being the wife of Alfredo Ching, she was stocks to the petitioners. The dispositive portion
a third-party claimant entitled to file a motion for the reads:
release of the properties.32 She attached therewith a
copy of her marriage contract with Alfredo Ching.33 WHEREFORE, the instant Motion to Quash
Preliminary Attachment, dated November 9, 1993, is
The ABC filed a comment on the motion to quash hereby granted. Let the writ of preliminary
preliminary attachment and/or motion to expunge attachment subject matter of said motion, be
records, contending that: quashed and lifted with respect to the attached
100,000 common shares of stock of Citycorp
2.1 The supposed movant, Encarnacion T. Investment Philippines in the name of the defendant
Ching, is not a party to this present case; Alfredo Ching, the said shares of stock to be
thus, she has no personality to file any returned to him and his movant-spouse by Deputy
motion before this Honorable Court; Sheriff Apolonio A. Golfo who effected the levy
thereon on July 26, 1983, or by whoever may be
presently in possession thereof.
2.2 Said supposed movant did not file any
Motion for Intervention pursuant to Section
2, Rule 12 of the Rules of Court; SO ORDERED.38

2.3 Said Motion cannot even be construed The plaintiff Allied Banking Corporation filed a
to be in the nature of a Third-Party Claim motion for the reconsideration of the order but
conformably with Sec. 14, Rule 57 of the denied the same on February 17, 1994. The
Rules of Court. petitioner bank forthwith filed a petition for certiorari
with the CA, docketed as CA-G.R. SP No. 33585, for
the nullification of the said order of the court,
3. Furthermore, assuming in gracia argumenti that
contending that:
the supposed movant has the required personality,
her Motion cannot be acted upon by this Honorable
Court as the above-entitled case is still in the 1. The respondent Judge exceeded his
archives and the proceedings thereon still remains authority thereby acted without jurisdiction in
suspended. And there is no previous Motion to taking cognizance of, and granting a
revive the same.34 "Motion" filed by a complete stranger to the
case.
The ABC also alleged that the motion was barred by
prescription or by laches because the shares of 2. The respondent Judge committed a grave
stocks were in custodia legis. abuse of discretion in lifting the writ of
preliminary attachment without any basis in
fact and in law, and contrary to established
During the hearing of the motion, Encarnacion T.
jurisprudence on the matter.39
Ching adduced in evidence her marriage contract to
Alfredo Ching to prove that they were married on
January 8, 1960;35 the articles of incorporation of On November 27, 1995, the CA rendered judgment
Citycorp Investment Philippines dated May 14, granting the petition and setting aside the assailed
1979;36 and, the General Information Sheet of the orders of the trial court, thus:
corporation showing that petitioner Alfredo Ching
was a member of the Board of Directors of the said WHEREFORE, premises considered, the petition is
corporation and was one of its top twenty GRANTED, hereby setting aside the questioned
stockholders. orders (dated December 15, 1993 and February 17,
1994) for being null and void.
On December 10, 1993, the Spouses Ching filed
their Reply/Opposition to the motion to expunge SO ORDERED.40
records.
The CA sustained the contention of the private
Acting on the aforementioned motion, the trial court respondent and set aside the assailed orders.
issued on December 15, 1993 an Order37 lifting the According to the CA, the RTC deprived the private
writ of preliminary attachment on the shares of respondent of its right to file a bond under Section

20
14, Rule 57 of the Rules of Court. The petitioner In its comment on the petition, the private
Encarnacion T. Ching was not a party in the trial respondent asserts that the CA correctly granted its
court; hence, she had no right of action to have the petition for certiorari nullifying the assailed order. It
levy annulled with a motion for that purpose. Her contends that the CA correctly relied on the ruling of
remedy in such case was to file a separate action this Court in Wong v. Intermediate Appellate Court.
against the private respondent to nullify the levy on Citing Cobb-Perez v. Lantin and G-Tractors, Inc. v.
the 100,000 Citycorp shares of stocks. The court Court of Appeals, the private respondent alleges that
stated that even assuming that Encarnacion T. the continuing guaranty and suretyship executed by
Ching had the right to file the said motion, the same petitioner Alfredo Ching in pursuit of his profession
was barred by laches. or business. Furthermore, according to the private
respondent, the right of the petitioner-wife to a share
Citing Wong v. Intermediate Appellate Court,41 the in the conjugal partnership property is merely
CA ruled that the presumption in Article 160 of the inchoate before the dissolution of the partnership; as
New Civil Code shall not apply where, as in this such, she had no right to file the said motion to
case, the petitioner-spouses failed to prove the quash the levy on attachment of the shares of
source of the money used to acquire the shares of stocks.
stock. It held that the levied shares of stocks
belonged to Alfredo Ching, as evidenced by the fact The issues for resolution are as follows: (a) whether
that the said shares were registered in the corporate the petitioner-wife has the right to file the motion to
books of Citycorp solely under his name. Thus, quash the levy on attachment on the 100,000 shares
according to the appellate court, the RTC committed of stocks in the Citycorp Investment Philippines; (b)
a grave abuse of its discretion amounting to excess whether or not the RTC committed a grave abuse of
or lack of jurisdiction in issuing the assailed orders. its discretion amounting to excess or lack of
The petitioners’ motion for reconsideration was jurisdiction in issuing the assailed orders.
denied by the CA in a Resolution dated April 2,
1996. On the first issue, we agree with the petitioners that
the petitioner-wife had the right to file the said
The petitioner-spouses filed the instant petition for motion, although she was not a party in Civil Case
review on certiorari, asserting that the RTC did not No. 142729.48
commit any grave abuse of discretion amounting to
excess or lack of jurisdiction in issuing the assailed In Ong v. Tating,49 we held that the sheriff may
orders in their favor; hence, the CA erred in attach only those properties of the defendant against
reversing the same. They aver that the source of whom a writ of attachment has been issued by the
funds in the acquisition of the levied shares of stocks court. When the sheriff erroneously levies on
is not the controlling factor when invoking the attachment and seizes the property of a third person
presumption of the conjugal nature of stocks under in which the said defendant holds no right or interest,
Art. 160,42 and that such presumption subsists even the superior authority of the court which has
if the property is registered only in the name of one authorized the execution may be invoked by the
of the spouses, in this case, petitioner Alfredo aggrieved third person in the same case. Upon
Ching.43 According to the petitioners, the suretyship application of the third person, the court shall order a
obligation was not contracted in the pursuit of the summary hearing for the purpose of determining
petitioner-husband’s profession or business.44 And, whether the sheriff has acted rightly or wrongly in the
contrary to the ruling of the CA, where conjugal performance of his duties in the execution of the writ
assets are attached in a collection suit on an of attachment, more specifically if he has indeed
obligation contracted by the husband, the wife levied on attachment and taken hold of property not
should exhaust her motion to quash in the main case belonging to the plaintiff. If so, the court may then
and not file a separate suit.45 Furthermore, the order the sheriff to release the property from the
petitioners contend that under Art. 125 of the Family erroneous levy and to return the same to the third
Code, the petitioner-husband’s gratuitous suretyship person. In resolving the motion of the third party, the
is null and void ab initio,46 and that the share of one court does not and cannot pass upon the question of
of the spouses in the conjugal partnership remains the title to the property with any character of finality.
inchoate until the dissolution and liquidation of the It can treat the matter only insofar as may be
partnership.47 necessary to decide if the sheriff has acted correctly
or not. If the claimant’s proof does not persuade the
court of the validity of the title, or right of possession

21
thereto, the claim will be denied by the court. The discretion amounting to excess or lack of jurisdiction
aggrieved third party may also avail himself of the in issuing the assailed orders.
remedy of "terceria" by executing an affidavit of his
title or right of possession over the property levied Article 160 of the New Civil Code provides that all
on attachment and serving the same to the office the properties acquired during the marriage are
making the levy and the adverse party. Such party presumed to belong to the conjugal partnership,
may also file an action to nullify the levy with unless it be proved that it pertains exclusively to the
damages resulting from the unlawful levy and husband, or to the wife. In Tan v. Court of
seizure, which should be a totally separate and Appeals,53 we held that it is not even necessary to
distinct action from the former case. The above- prove that the properties were acquired with funds of
mentioned remedies are cumulative and any one of the partnership. As long as the properties were
them may be resorted to by one third-party claimant acquired by the parties during the marriage, they are
without availing of the other remedies.50 presumed to be conjugal in nature. In fact, even
when the manner in which the properties were
In this case, the petitioner-wife filed her motion to set acquired does not appear, the presumption will still
aside the levy on attachment of the 100,000 shares apply, and the properties will still be considered
of stocks in the name of petitioner-husband claiming conjugal. The presumption of the conjugal nature of
that the said shares of stocks were conjugal in the properties acquired during the marriage subsists
nature; hence, not liable for the account of her in the absence of clear, satisfactory and convincing
husband under his continuing guaranty and evidence to overcome the same.54
suretyship agreement with the PBMCI. The
petitioner-wife had the right to file the motion for said In this case, the evidence adduced by the petitioners
relief. in the RTC is that the 100,000 shares of stocks in
the Citycorp Investment Philippines were issued to
On the second issue, we find and so hold that the and registered in its corporate books in the name of
CA erred in setting aside and reversing the orders of the petitioner-husband when the said corporation
the RTC. The private respondent, the petitioner in was incorporated on May 14, 1979. This was done
the CA, was burdened to prove that the RTC during the subsistence of the marriage of the
committed a grave abuse of its discretion amounting petitioner-spouses. The shares of stocks are, thus,
to excess or lack of jurisdiction. The tribunal acts presumed to be the conjugal partnership property of
without jurisdiction if it does not have the legal the petitioners. The private respondent failed to
purpose to determine the case; there is excess of adduce evidence that the petitioner-husband
jurisdiction where the tribunal, being clothed with the acquired the stocks with his exclusive money.55 The
power to determine the case, oversteps its authority barefaced fact that the shares of stocks were
as determined by law. There is grave abuse of registered in the corporate books of Citycorp
discretion where the tribunal acts in a capricious, Investment Philippines solely in the name of the
whimsical, arbitrary or despotic manner in the petitioner-husband does not constitute proof that the
exercise of its judgment and is equivalent to lack of petitioner-husband, not the conjugal partnership,
jurisdiction.51 owned the same.56 The private respondent’s reliance
on the rulings of this Court in Maramba v.
It was incumbent upon the private respondent to Lozano57 and Associated Insurance & Surety Co.,
adduce a sufficiently strong demonstration that the Inc. v. Banzon58 is misplaced. In the Maramba case,
RTC acted whimsically in total disregard of evidence we held that where there is no showing as to when
material to, and even decide of, the controversy the property was acquired, the fact that the title is in
before certiorari will lie. A special civil action for the wife’s name alone is determinative of the
certiorari is a remedy designed for the correction of ownership of the property. The principle was
errors of jurisdiction and not errors of judgment. reiterated in the Associated Insurance case where
When a court exercises its jurisdiction, an error the uncontroverted evidence showed that the shares
committed while so engaged does not deprive it of of stocks were acquired during the marriage of the
its jurisdiction being exercised when the error is petitioners.
committed.52
Instead of fortifying the contention of the
After a comprehensive review of the records of the respondents, the ruling of this Court in Wong v.
RTC and of the CA, we find and so hold that the Intermediate Appellate Court59 buttresses the case
RTC did not commit any grave abuse of its for the petitioners. In that case, we ruled that he who

22
claims that property acquired by the spouses during partnership responsible for a liability that should
their marriage is not conjugal partnership property appertain alone to one of the spouses is to frustrate
but belongs to one of them as his personal property the objective of the New Civil Code to show the
is burdened to prove the source of the money utmost concern for the solidarity and well being of
utilized to purchase the same. In this case, the the family as a unit. The husband, therefore, is
private respondent claimed that the petitioner- denied the power to assume unnecessary and
husband acquired the shares of stocks from the unwarranted risks to the financial stability of the
Citycorp Investment Philippines in his own name as conjugal partnership.62
the owner thereof. It was, thus, the burden of the
private respondent to prove that the source of the In this case, the private respondent failed to prove
money utilized in the acquisition of the shares of that the conjugal partnership of the petitioners was
stocks was that of the petitioner-husband alone. As benefited by the petitioner-husband’s act of
held by the trial court, the private respondent failed executing a continuing guaranty and suretyship
to adduce evidence to prove this assertion. agreement with the private respondent for and in
behalf of PBMCI. The contract of loan was between
The CA, likewise, erred in holding that by executing the private respondent and the PBMCI, solely for the
a continuing guaranty and suretyship agreement benefit of the latter. No presumption can be inferred
with the private respondent for the payment of the from the fact that when the petitioner-husband
PBMCI loans, the petitioner-husband was in the entered into an accommodation agreement or a
exercise of his profession, pursuing a legitimate contract of surety, the conjugal partnership would
business. The appellate court erred in concluding thereby be benefited. The private respondent was
that the conjugal partnership is liable for the said burdened to establish that such benefit redounded to
account of PBMCI under Article 161(1) of the New the conjugal partnership.63
Civil Code.
It could be argued that the petitioner-husband was a
Article 161(1) of the New Civil Code (now Article member of the Board of Directors of PBMCI and was
121[2 and 3]60 of the Family Code of the Philippines) one of its top twenty stockholders, and that the
provides: shares of stocks of the petitioner-husband and his
family would appreciate if the PBMCI could be
Art. 161. The conjugal partnership shall be liable for: rehabilitated through the loans obtained; that the
petitioner-husband’s career would be enhanced
should PBMCI survive because of the infusion of
(1) All debts and obligations contracted by the
fresh capital. However, these are not the benefits
husband for the benefit of the conjugal partnership,
contemplated by Article 161 of the New Civil Code.
and those contracted by the wife, also for the same
The benefits must be those directly resulting from
purpose, in the cases where she may legally bind
the loan. They cannot merely be a by-product or a
the partnership.
spin-off of the loan itself.64
The petitioner-husband signed the continuing
This is different from the situation where the
guaranty and suretyship agreement as security for
husband borrows money or receives services to be
the payment of the loan obtained by the PBMCI from
used for his own business or profession. In the Ayala
the private respondent in the amount of
case, we ruled that it is such a contract that is one
₱38,000,000. In Ayala Investment and Development
within the term "obligation for the benefit of the
Corp. v. Court of Appeals,61 this Court ruled "that the
conjugal partnership." Thus:
signing as surety is certainly not an exercise of an
industry or profession. It is not embarking in a
business. No matter how often an executive acted (A) If the husband himself is the principal obligor in
on or was persuaded to act as surety for his own the contract, i.e., he directly received the money and
employer, this should not be taken to mean that he services to be used in or for his own business or his
thereby embarked in the business of suretyship or own profession, that contract falls within the term "…
guaranty." obligations for the benefit of the conjugal
partnership." Here, no actual benefit may be proved.
It is enough that the benefit to the family is apparent
For the conjugal partnership to be liable for a liability
at the time of the signing of the contract. From the
that should appertain to the husband alone, there
very nature of the contract of loan or services, the
must be a showing that some advantages accrued to
family stands to benefit from the loan facility or
the spouses. Certainly, to make a conjugal

23
services to be rendered to the business or
profession of the husband. It is immaterial, if in the
end, his business or profession fails or does not
succeed. Simply stated, where the husband
contracts obligations on behalf of the family
business, the law presumes, and rightly so, that
such obligation will redound to the benefit of the
conjugal partnership.65

The Court held in the same case that the rulings of

the Court in Cobb-Perez and G-Tractors, Inc. are not
controlling because the husband, in those cases,
contracted the obligation for his own business. In
this case, the petitioner-husband acted merely as a
surety for the loan contracted by the PBMCI from the
private respondent.

IN LIGHT OF ALL THE FOREGOING, the petition is

GRANTED. The Decision and Resolution of the
Court of Appeals are SET ASIDE AND REVERSED.
The assailed orders of the RTC are AFFIRMED.

SO ORDERED.

FIRST DIVISION

G.R. No. L-29723 July 14, 1988

ANTONIO ZARAGOZA, plaintiff-appellee,
vs.
MARIA ANGELA FIDELINO and/or "JOHN DOE,"

24
defendants MABINI INSURANCE & FIDELITY deemed the motion meritorious and granted it. Its
CO., INC., surety-appellant. Order of April 16, 1968 7 decreed the following:

WHEREFORE, the motion is hereby

granted, and the dispositive portion
NARVASA, J.: of the decision in this case is hereby
amended to read as follows:
Involved in this appeal is no more than the
procedure to hold a surety hable upon a counter- WHEREFORE,
bond posted by it for the release of an automobile judgment is hereby
seized from a defendant in a replevin  action under a rendered in favor of
writ issued by the Trial Court at the plaintiffs the plaintiff and
instance. against the
defendant, ordering
defendant Maria
The suit for the replevy of the car was brought by
Angela Fidelino and
Antonio Zaragoza in the Court of First Instance at
her surety, the
Quezon City 1 against Ma. Angela Fidelino and/or
Mabini Insurance &
John Doe. His complaint alleged that the car had
Fidelity Co., Inc., to
been sold to Fidelino but the latter had failed to pay
pay jointly and
the price in the manner stipulated in their agreement.
severally to the
The car was taken from Fidelino's possession by the
plaintiff the sum of
sheriff on the strength of a writ of delivery 2 but was
P19,417.46,
promptly returned to her on orders of the Court when
representing the
a surety bond for the car's releases 3 was posted in
balance of the
her behalf "by Mabini Insurance & Fidelity Co., Inc.
purchase price of
the car sold,
The action resulted in a judgment 4 for the plaintiff including interests
the dispositive part of which reads as follows: thereon, collection
charges, notarial
WHEREFORE, judgment is hereby fees and sheriffs
rendered in favor of the plaintiff and fees and expenses
against the defendant, ordering the in connection with
latter to pay to the plaintiff the sum the recovery of the
of P19,417.46, representing the vehicle sold,
balance of the purchase price of the liquidated damages
car sold including interest thereon, in the amount of
collection charges, notarial fees and P6,471.84
sheriffs fees and expenses in conn equivalent to 33
with the recovery of the vehicle sold; 1/3% of the balance
to pay liquidated damage in the outstanding and to
amount of P6,471.84 equivalent to pay the costs of this
33 1/3 % of the balance outstanding suit.
and to pay the costs of this suit.
No motion for reconsideration was filed or appeal
Within the reglementary period for taking an appeal, taken by the defendant Fidelino as regards either the
Zaragoza moved for the amendment of the decision original or the amended decision. It was the surety
so as to include the surety, Mabini Insurance & which presented a motion for reconsideration, and
Fidelity Co., Inc., as a party solidarily liable with the upon its denial, appealed to this Court. 8 It ascribes
defendant for the payment of the sums awarded in to the Court a quo, as might be expected, reversible
the judgment. 5 Despite having been duly furnished error in amending the judgment in the manner just
with copies of the motion and the notice of hearing, described. It argues that the Lower Court never
neither Fidelino nor the surety company filed any acquired jurisdiction over it since no summons was
opposition to the motion, nor did either of them ever served on it, its filing of a counter-bond not
appear at the hearing thereof. 6 The Trial Court being equivalent to voluntary submission to the

25
Court's jurisdiction; Zaragoza failed to make a proper bar, the writ of delivery was not illegal; and the
application with notice before finality of the decision judgment was for, not against, the party in whose
as provided by Section 20, Rule 57 of the Rules of favor the writ of delivery was issued. In other words,
Court; and when the order amending the judgment it would appear that for Section 20, Rule 57 to apply
was promulgated, the judgment had already become to the instant action," 11 the judgment should have
final, the running of the period of appeal not having been "in favor of" defendant Fidelino (the
been suspended by Zaragoza's motion to amend party "against whom" the writ of delivery was
decision, 9 and so, the Court no longer had authority issued). This however was not the case. The
to amend it on April 16, 1968. judgment was in fact against, NOT in favor of
Fidelino.
The appellant surety deposits quite correctly, that
the situation at bar is governed by Section 10, Rule It thus sums indeed that the first sentence of Section
60, in relation to Section 20, Rule 57, of the Rules of 20 precludes recovery of damages by a party
Court. Section 10, Rule 60, provides as follows: against whom an attachment is issued and enforced
if the judgment be adverse to him. This is not
SEC. 10. Judgment to include however correct. Although a party be adjudged liable
recovery against sureties. — The to another, ff it be established that the attachment
amount, if any, to be awarded to issued at the latter's instance was wrongful and the
either party upon any bond filed by former had suffered injury thereby, recovery for
the other in accordance with the damages may be had by the party thus prejudiced
provisions of this rule, shag be by the wrongful attachment, even if the judgment be
claimed, ascertained, and granted adverse to him. Slight reflection will show the validity
under the same procedure as of this proposition. For it is entirely possible for a
prescribed in section 20 of Rule 57. plaintiff to have a meritorious cause of action against
a defendant but have no proper ground for a
preliminary attachment. In such a case, if the plaintiff
And Section 20, Rule 57 reads as follows:
nevertheless applies for and somehow succeeds in
obtaining an attachment, but is subsequently
SEC. 20. Claim for damages on declared by final judgment as not entitled thereto,
account of illegal attachment. — If and the defendant shows that he has suffered
the judgment on the action be in damages by reason of the attachment, there can be
favor of the party against whom no gainsaying that indemnification is justly due the
attachment was issued, he may latter. So has this Court already had occasion to
recover, upon the bond given or rule, in Baron v. David, 51 Phil. 1, and Javellana v.
deposit made by the attaching D.O. Plaza Enterprises, 32 SCRA 26].
creditor, any damages resulting from
the attachment. Such damages may
Be all this as it may, the second and third sentences
be awarded only upon application
of Section 20, Rule 57, in relation to Section 10,
and after proper hearing, and shall
Rule 60, are unquestionably relevant to the matter of
be included in the final judgment.
the surety's liability upon a counter-bond for the
The application must be filed before
discharge of a writ of delivery in
the trial or before appeal is
a replevin suit. 12 Under Section 10, Rule 60 (which
perfected or before the judgment
makes reference "to either party upon any bond filed
becomes executory, with due notice
by the other in accordance with the provisions of this
to the attaching creditor and his
rule" [60]), the surety's liability for damages upon its
surety or sureties, setting forth the
counter-bond should "W claimed, ascertained, and
facts showing his right to damages
granted under the same procedure as prescribed in
and the amount thereof
section 20 of Rule 57; 13 and andd section 20
pertinently decrees that '(s)uch damages may
xxx xxx xxx 10 be awarded only upon application and after proper
hearing, and shall be included in the final judgment ..
It would seem at first blush that Section 20, Rule 57 (which means that the (application must be filed
above quoted is not relevant. Its title and first before the trial or before appeal is perfected or
sentence speak [1] of an illegal attachment, and [2] before the judgment becomes executory, with due
of a judgment "in favor of the party against whom notice to the attaching creditor and his surety or
(said illegal) attachment was issued." In the case at

26
sureties, setting forth the facts showing his right to This being so, the appellant surety's liability attached
damages and the amount thereof." Stated otherwise, upon the promulgation of the verdict against
to hold a surety on a counter-bond liable, what is Fidelino. All that was necessary to enforce the
entailed is (1) the filing of an application therefor with judgment against it was, as aforestated, an
the Court having jurisdiction of the action; (2) the application therefor with the Court, with due notice to
presentation thereof before the judgment becomes the surety, and a proper hearing, i.e., that it be
executory (or before the trial or before appeal is formally notified that it was in truth being made
perfected); (3) the statement in said application of responsible for its co-principal's adjudicated
the facts showing the applicant's right to damages prestation (in this case, the payment of the balance
and the amount thereof, (4) the giving of due notice of the purchase price of the automobile which could
of the application to the attaching creditor and his no longer be found and therefore could not be
surety or sureties; and (5) the holding of a proper ordered returned), 17 and an opportunity, at a hearing
hearing at which the attaching creditor and the called for the purpose, to show to the Court why it
sureties may be heard on the application. These should not be adjudged so responsible. A separate
requisites apply not only in cases of seizure or action was not necessary; it was in fact
delivery under Rule 60, but also in cases proscribed. 18 And again, the record shows
of preliminary injunctions under Rule substantial compliance with these basic
58, 14 and receiverships under Rule 59. 15 requirements, obviously imposed in deference to
due process.
It should be stressed, however, that enforcement of
a surety's liability on a counter-bond given for the Appellant surety undoubtedly received copy of
release of property seized under a writ of preliminary Zaragoza's Motion to Amend Decision.19 That motion
attachment is governed, not by said Section 20, but made clear its purpose—that the decision "be
by another specifically and specially dealing with the amended, or an appropriate order be issued, to
matter; Section 17 of Rule 57, which reads as include .. (the surety) as a party jointly and severally
follows: liable with the defendant to the extent of the sums
awarded in the decision to be paid to plaintiff'-as well
SEC. 17. When execution returned as the basis thereof-the counter-bond filed by it by
unsatiated, recovery had upon bond. the explicit terms of which it bound itself "jointly and
— If the execution be returned severally (with the defendant) .. for the payment of
unsatisfied in whole or in part, the such sum to him (plaintiff) as may be recovered
surety or sureties on any counter- against the defendant and the cost of the action."
bond given pursuant to the The motion contained, at the foot thereof, a "notice
provisions of this rule to secure the that on Saturday, March 23, 1968, at 8:30 a.m., or
payment of the judgment shall as soon thereafter as the matter may be heard, the ..
become charged on such counter- (plaintiffs counsel would) submit the foregoing
bond, and bound to pay to the motion for the consideration of the Court." And
judgment creditor upon demand, the likewise indubitable is the fact that, as the Court a
amount due under the judgment, quo has observed, "neither .. Fidelinos counsel nor
which amount may be recovered the surety company filed any opposition to said
from such surety or sureties after motion, nor did they appear in the hearing of the
notice and summary hearing in the motion on March 23, 1968 .. (for which reason) the
same action." motion was deemed submitted for resolution." 20 The
surety's omission to appear at the hearing despite
notice of course constituted a waiver of the right to
The record shows that the appellant surety company
be heard on the matter.
bound itself "jointly and severally"  with the defendant
Fidelino "in the sum of PESOS FORTY EIGHT
THOUSAND ONLY (P48,000.00), Philippine The surety's theory that never having been served
Currency, which is double the value of the property with summons, it never came under the Lower
stated in the affidavit of the plaintiff, for the delivery Court's jurisdiction, is untenable. The terms of the
thereof if such delivery is adjudged, or for the counter-bond voluntarily filed by it in defendant's
payment of such sum to him as may be recovered behalf leave no doubt of its assent to be bound by
against the defendant and the costs of the action.  16 the Court's adjudgment of the defendant's liability,
i.e., its acceptance of the Court's jurisdiction. For in
that counterbond, it implicitly prayed for affirmative

27
relief; the release of the seized car, in consideration WHEREFORE, judgment is hereby rendered
of which it explicitly bound itself solidarily with said AFFIRMING in toto the Decision of the Court a
defendant to answer for the delivery of the car quo dated February 12, 1968, as amended by the
subject of the action "if such delivery is adjudged," Order of April 16, 1968. Costs against the appellant
i.e., commanded by the Court's judgment, or "for the surety.
payment of such sum as may be recovered against
the defendant and the costs of the action," the THIRD DIVISION
reference to a possible future judgment against the
defendant, and necessarily against itself, being G.R. No. 179922             December 16, 2008
certain and unmistakable. The filing of that bond was
clearly an act of voluntary submission to the Court's
authority, which is one of the modes for the JUAN DE DIOS CARLOS, petitioner,
acquisition of jurisdiction over a party.21 vs.
FELICIDAD SANDOVAL, also known as
FELICIDAD S. VDA. DE CARLOS or FELICIDAD
The same theory as that espoused by appellant SANDOVAL CARLOS or FELICIDAD SANDOVAL
surety in this case was, in substance, passed upon VDA. DE CARLOS, and TEOFILO CARLOS
and declared to be without merit in a 1962 decision II, respondents.
of this Court, Dee v. Masloff.  22 There, a surety on
a counter-bond given to release property from
receivership, also sought to avoid liability by DECISION
asserting that it was not a party to the case, had
never been made a party, and had not been notified REYES, R.T., J.:
of the trial. The Court overruled the contention, and
upheld the propriety of the amendment of the ONLY a spouse can initiate an action to sever the
judgment which ordered the appellant surety marital bond for marriages solemnized during the
company to pay — to the extent of its bond and effectivity of the Family Code, except cases
jointly and severally with defendant — the judgment commenced prior to March 15, 2003. The nullity and
obligation. The Court ruled that since such annulment of a marriage cannot be declared in a
"amended judgment .. (had been) rendered after the judgment on the pleadings, summary judgment, or
appellant surety company as party jointly and confession of judgment.
severally liable with the defendant .. for the damages
already awarded to the appellees, to which the We pronounce these principles as We review
appellant surety company filed its "Opposition" and on certiorari the Decision1 of the Court of Appeals
"Rejoinder" to the "Reply to Opposition filed by the (CA) which reversed and set aside the summary
appellees, without putting in issue the judgment2 of the Regional Trial Court (RTC) in an
reasonableness of the amount awarded for damages action for declaration of nullity of marriage, status of
but confining itself to the defense in avoidance of a child, recovery of property, reconveyance, sum of
liability on its bond that it was not a party to the case money, and damages.
and never made a party therein and was not notified
of the trial of the case, and that the appellees were
The Facts
guilty of laches, the requirement of hearing was fully
satisfied or complied with; .. (in any case,) appellant
surety company never prayed for an opportunity to The events that led to the institution of the instant
present evidence in its behalf." suitare unveiled as follows:

The appellant surety's last argument that by the time Spouses Felix B. Carlos and Felipa Elemia died
the Court amended its decision, the decision had intestate. They left six parcels of land to their
already become final, and therefore unalterable, is compulsory heirs, Teofilo Carlos and petitioner Juan
also untenable. The motion for amendment of the De Dios Carlos. The lots are particularly described
decision was unquestionably in the nature of a as follows:
motion for reconsideration under Section 1 (c), Rule
37 of the Rules of Court which, having been filed Parcel No. 1
within "the period for perfecting an appeal," had the
effect of interrupting said period of appeal. 23

28
Lot No. 162 of the MUNTINLUPA ESTATE por el SW, con la calle Dos Castillas.
SUBDIVISION, Case No. 6137 of the Court Partiendo de un punto marcado 1 en el
of Land Registration. plano, el cual se halla a S. gds. 01'W, 72.50
mts. Desde el punto 1 de esta manzana,
Exemption from the provisions of Article 567 que es un mojon de concreto de la Ciudad
of the Civil Code is specifically reserved. de Manila, situado on el esquina E. que
forman las Calles Laong Laan y Dos.
Castillas, continiendo un extension
Area: 1 hectare, 06 ares, 07 centares.
superficial de CIENTO CINCUENTA (150)
METROS CUADRADOS.
Parcel No. 2
PARCEL No. 6
A parcel of land (Lot No. 159-B), being a
portion of Lot 159, situated in the Bo. of
PARCELA DE TERRENO No. 51, Manzana
Alabang, Municipality of Muntinlupa,
No. 18, de la subd. De Solocon. Linda por el
Province of Rizal, x x x containing an area of
NW, con la parcela 50; por el NE, con la
Thirteen Thousand Four Hundred Forty One
parcela 37; por el SE, con la parcela 52; por
(13,441) square meters.
el SW, con la Calle Dos Castillas. Partiendo
de un punto Marcado 1 en el plano, el cual
Parcel No. 3 se halla at S. 43 gds. 01'E, 82.50 mts.
Desde el punto 1 de esta manzana, que es
A parcel of land (Lot 159-B-2 of the subd. un mojon de concreto de la Ciudad de
plan [LRC] Psd-325903, approved as a non- Manila, situado on el esquina E. que forman
subd. project), being a portion of Lot 159-B las Calles Laong Laan y Dos. Castillas,
[LRC] Psd- Alabang, Mun. of Muntinlupa, continiendo una extension superficial de
Metro Manila, Island of Luzon. Bounded on CIENTO CINCUENTA (150) METROS
the NE, points 2 to 4 by Lot 155, Muntinlupa CUADRADOS.3
Estate; on the SE, point 4 to 5 by Lot 159-B-
5; on the S, points 5 to 1 by Lot 159-B-3; on During the lifetime of Felix Carlos, he agreed to
the W, points 1 to 2 by Lot 159-B-1 (Road transfer his estate to Teofilo. The agreement was
widening) all of the subd. plan, containing an made in order to avoid the payment of inheritance
area of ONE HUNDRED THIRTY (130) SQ. taxes. Teofilo, in turn, undertook to deliver and turn
METERS, more or less. over the share of the other legal heir, petitioner Juan
De Dios Carlos.
PARCEL No. 4
Eventually, the first three (3) parcels of land were
A parcel of land (Lot 28-C of the subd. plan transferred and registered in the name of Teofilo.
Psd-13-007090, being a portion of Lot 28, These three (3) lots are now covered by Transfer
Muntinlupa Estate, L.R.C. Rec. No. 6137), Certificate of Title (TCT) No. 234824 issued by the
situated in the Bo. of Alabang, Mun. of Registry of Deeds of Makati City; TCT No. 139061
Muntinlupa, Metro Manila. Bounded on the issued by the Registry of Deeds of Makati City; and
NE, along lines 1-2 by Lot 27, Muntinlupa TCT No. 139058 issued by the Registry of Deeds of
Estate; on the East & SE, along lines 2 to 6 Makati City.
by Mangangata River; and on the West.,
along line 6-1, by Lot 28-B of the subd. plan Parcel No. 4 was registered in the name of
x x x containing an area of ONE THUSAND petitioner. The lot is now covered by TCT No.
AND SEVENTY-SIX (1,076) SQUARE 160401 issued by the Registry of Deeds of Makati
METERS. City.

PARCEL No. 5 On May 13, 1992, Teofilo died intestate. He was

survived by respondents Felicidad and their son,
PARCELA DE TERRENO No. 50, Manzana Teofilo Carlos II (Teofilo II). Upon Teofilo's death,
No. 18, de la subd. de Solocan. Linda por el Parcel Nos. 5 & 6 were registered in the name of
NW, con la parcela 49; por el NE, con la respondent Felicidad and co-respondent, Teofilo II.
parcela 36; por el SE, con la parcela 51; y The said two (2) parcels of land are covered by TCT

29
Nos. 219877 and 210878, respectively, issued by prayed for the cancellation of the certificates of title
the Registry of Deeds of Manila. issued in the name of respondents. He argued that
the properties covered by such certificates of title,
In 1994, petitioner instituted a suit against including the sums received by respondents as
respondents before the RTC in Muntinlupa City, proceeds, should be reconveyed to him.
docketed as Civil Case No. 94-1964. In the said
case, the parties submitted and caused the approval Finally, petitioner claimed indemnification as and by
of a partial compromise agreement. Under the way of moral and exemplary damages, attorney's
compromise, the parties acknowledged their fees, litigation expenses, and costs of suit.
respective shares in the proceeds from the sale of a
portion of the first parcel of land. This includes the On October 16, 1995, respondents submitted their
remaining 6,691-square-meter portion of said land. answer. They denied the material averments of
petitioner's complaint. Respondents contended that
On September 17, 1994, the parties executed a the dearth of details regarding the requisite marriage
deed of extrajudicial partition, dividing the remaining license did not invalidate Felicidad's marriage to
land of the first parcel between them. Teofilo. Respondents declared that Teofilo II was the
illegitimate child of the deceased Teofilo Carlos with
Meanwhile, in a separate case entitled Rillo v. another woman.
Carlos,4 2,331 square meters of the second parcel of
land were adjudicated in favor of plaintiffs Rillo. The On the grounds of lack of cause of action and lack of
remaining 10,000-square meter portion was later jurisdiction over the subject matter, respondents
divided between petitioner and respondents. prayed for the dismissal of the case before the trial
court. They also asked that their counterclaims for
The division was incorporated in a supplemental moral and exemplary damages, as well as attorney's
compromise agreement executed on August 17, fees, be granted.
1994, with respect to Civil Case No. 94-1964. The
parties submitted the supplemental compromise But before the parties could even proceed to pre-
agreement, which was approved accordingly. trial, respondents moved for summary judgment.
Attached to the motion was the affidavit of the justice
Petitioner and respondents entered into two more of the peace who solemnized the marriage.
contracts in August 1994. Under the contracts, the Respondents also submitted the Certificate of Live
parties equally divided between them the third and Birth of respondent Teofilo II. In the certificate, the
fourth parcels of land. late Teofilo Carlos and respondent Felicidad were
designated as parents.
In August 1995, petitioner commenced an action,
docketed as Civil Case No. 95-135, against On January 5, 1996, petitioner opposed the motion
respondents before the court a quo with the for summary judgment on the ground of irregularity
following causes of action: (a) declaration of nullity of of the contract evidencing the marriage. In the same
marriage; (b) status of a child; (c) recovery of breath, petitioner lodged his own motion for
property; (d) reconveyance; and (e) sum of money summary judgment. Petitioner presented a
and damages. The complaint was raffled to Branch certification from the Local Civil Registrar of
256 of the RTC in Muntinlupa. Calumpit, Bulacan, certifying that there is no record
of birth of respondent Teofilo II.
In his complaint, petitioner asserted that the
marriage between his late brother Teofilo and Petitioner also incorporated in the counter-motion for
respondent Felicidad was a nullity in view of the summary judgment the testimony of respondent
absence of the required marriage license. He Felicidad in another case. Said testimony was made
likewise maintained that his deceased brother was in Civil Case No. 89-2384, entitled Carlos v.
neither the natural nor the adoptive father of Gorospe, before the RTC Branch 255, Las Piñas. In
respondent Teofilo Carlos II. her testimony, respondent Felicidad narrated that
co-respondent Teofilo II is her child with Teofilo.5
Petitioner likewise sought the avoidance of the
contracts he entered into with respondent Felicidad Subsequently, the Office of the City Prosecutor of
with respect to the subject real properties. He also Muntinlupa submitted to the trial court its report and

30
manifestation, discounting the possibility of collusion 6. Declaring the Contract, Annex M of the
between the parties. complaint, between plaintiff and defendant
Sandoval null and void;
RTC and CA Dispositions
7. Ordering the cancellation of TCT No.
On April 8, 1996, the RTC rendered judgment, 210877 in the names of defendant Sandoval
disposing as follows: and defendant minor Teofilo S. Carlos II and
ordering the Register of Deeds of Manila to
issue another title in the exclusive name of
WHEREFORE, premises considered,
plaintiff herein;
defendant's (respondent's) Motion for
Summary Judgment is hereby denied.
Plaintiff's (petitioner's) Counter-Motion for 8. Ordering the cancellation of TCT No.
Summary Judgment is hereby granted and 210878 in the name of defendant Sandoval
summary judgment is hereby rendered in and defendant Minor Teofilo S. Carlos II and
favor of plaintiff as follows: ordering the Register of Deeds of Manila to
issue another title in the sole name of
plaintiff herein.
1. Declaring the marriage between
defendant Felicidad Sandoval and Teofilo
Carlos solemnized at Silang, Cavite on May Let this case be set for hearing for the
14, 1962, evidenced by the Marriage reception of plaintiff's evidence on his claim
Certificate submitted in this case, null and for moral damages, exemplary damages,
void ab initio for lack of the requisite attorney's fees, appearance fees, and
marriage license; litigation expenses on June 7, 1996 at 1:30
o'clock in the afternoon.
2. Declaring that the defendant minor,
Teofilo S. Carlos II, is not the natural, SO ORDERED.6
illegitimate, or legally adopted child of the
late Teofilo E. Carlos; Dissatisfied, respondents appealed to the CA. In the
appeal, respondents argued, inter alia, that the trial
3. Ordering defendant Sandoval to pay and court acted without or in excess of jurisdiction in
restitute to plaintiff the sum rendering summary judgment annulling the marriage
of P18,924,800.00 together with the interest of Teofilo, Sr. and Felicidad and in declaring Teofilo
thereon at the legal rate from date of filing of II as not an illegitimate child of Teofilo, Sr.
the instant complaint until fully paid;
On October 15, 2002, the CA reversed and set aside
4. Declaring plaintiff as the sole and the RTC ruling, disposing as follows:
exclusive owner of the parcel of land, less
the portion adjudicated to plaintiffs in Civil WHEREFORE, the summary judgment
Case No. 11975, covered by TCT No. appealed from is REVERSED and SET
139061 of the Register of Deeds of Makati ASIDE and in lieu thereof, a new one is
City, and ordering said Register of Deeds to entered REMANDING the case to the court
cancel said title and to issue another title in of origin for further proceedings.
the sole name of plaintiff herein;
SO ORDERED.7
5. Declaring the Contract, Annex "K" of
complaint, between plaintiff and defendant The CA opined:
Sandoval null and void, and ordering the
Register of Deeds of Makati City to cancel We find the rendition of the herein appealed
TCT No. 139058 in the name of Teofilo summary judgment by the court a
Carlos, and to issue another title in the sole quo contrary to law and public policy as
name of plaintiff herein; ensconced in the aforesaid safeguards. The
fact that it was appellants who first sought
summary judgment from the trial court, did
not justify the grant thereof in favor of

31
appellee. Not being an action "to recover Moreover, even if We were to sustain the
upon a claim" or "to obtain a declaratory applicability of the rules on summary
relief," the rule on summary judgment apply judgment to the case at bench, Our perusal
(sic) to an action to annul a marriage. The of the record shows that the finding of the
mere fact that no genuine issue was court a quo for appellee would still not be
presented and the desire to expedite the warranted. While it may be readily conceded
disposition of the case cannot justify a that a valid marriage license is among the
misinterpretation of the rule. The first formal requisites of marriage, the absence of
paragraph of Article 88 and 101 of the Civil which renders the marriage void ab
Code expressly prohibit the rendition of initio pursuant to Article 80(3) in relation to
decree of annulment of a marriage upon a Article 58 of the Civil Code the failure to
stipulation of facts or a confession of reflect the serial number of the marriage
judgment. Yet, the affidavits annexed to the license on the marriage contract evidencing
petition for summary judgment practically the marriage between Teofilo Carlos and
amount to these methods explicitly appellant Felicidad Sandoval, although
proscribed by the law. irregular, is not as fatal as appellee
represents it to be. Aside from the dearth of
We are not unmindful of appellee's evidence to the contrary, appellant Felicidad
argument that the foregoing safeguards Sandoval's affirmation of the existence of
have traditionally been applied to prevent said marriage license is corroborated by the
collusion of spouses in the matter of following statement in the affidavit executed
dissolution of marriages and that the death by Godofredo Fojas, then Justice of the
of Teofilo Carlos on May 13, 1992 had Peace who officiated the impugned
effectively dissolved the marriage herein marriage, to wit:
impugned. The fact, however, that
appellee's own brother and appellant "That as far as I could remember,
Felicidad Sandoval lived together as there was a marriage license issued
husband and wife for thirty years and that at Silang, Cavite on May 14, 1962
the annulment of their marriage is the very as basis of the said marriage
means by which the latter is sought to be contract executed by Teofilo Carlos
deprived of her participation in the estate left and Felicidad Sandoval, but the
by the former call for a closer and more number of said marriage license
thorough inquiry into the circumstances was inadvertently not placed in the
surrounding the case. Rather that the marriage contract for the reason that
summary nature by which the court a it was the Office Clerk who filled up
quo  resolved the issues in the case, the rule the blanks in the Marriage Contract
is to the effect that the material facts alleged who in turn, may have overlooked
in the complaint for annulment of marriage the same."
should always be proved. Section 1, Rule 19
of the Revised Rules of Court provides: Rather than the inferences merely drawn by
the trial court, We are of the considered view
"Section 1. Judgment on the that the veracity and credibility of the
pleadings.  - Where an answer fails foregoing statement as well as the
to tender an issue, or otherwise motivations underlying the same should be
admits the material allegations of properly threshed out in a trial of the case on
the adverse party's pleading, the the merits.
court may, on motion of that party,
direct judgment on such pleading. If the non-presentation of the marriage
But in actions for annulment of contract - the primary evidence of marriage -
marriage or for legal separation, the is not proof that a marriage did not take
material facts alleged in the place, neither should appellants' non-
complaint shall always be proved." presentation of the subject marriage license
(Underscoring supplied) be taken as proof that the same was not
procured. The burden of proof to show the
nullity of the marriage, it must be

32
 emphasized, rests upon the plaintiff and any 1. That, in reversing and setting aside the
doubt should be resolved in favor of the Summary Judgment under the Decision,
validity of the marriage. Annex A hereof, and in denying petitioner's
Motion for reconsideration under the
Considering that the burden of proof also Resolution, Annex F hereof, with respect to
rests on the party who disputes the the nullity of the impugned marriage,
legitimacy of a particular party, the same petitioner respectfully submits that the Court
may be said of the trial court's rejection of of Appeals committed a grave
the relationship between appellant Teofilo reversible error in applying Articles 88 and
Carlos II and his putative father on the basis 101 of the Civil Code, despite the fact that
of the inconsistencies in appellant Felicidad the circumstances of this case are different
Sandoval's statements. Although it had from that contemplated and intended by law,
effectively disavowed appellant's prior or has otherwise decided a question of
claims regarding the legitimacy of appellant substance not theretofore decided by the
Teofilo Carlos II, the averment in the answer Supreme Court, or has decided it in a
that he is the illegitimate son of appellee's manner probably not in accord with law or
brother, to Our mind, did not altogether with the applicable decisions of this
foreclose the possibility of the said Honorable Court;
appellant's illegitimate filiation, his right to
prove the same or, for that matter, his 2. That in setting aside and reversing the
entitlement to inheritance rights as such. Summary Judgment and, in lieu thereof,
entering another remanding the case to the
Without trial on the merits having been court of origin for further proceedings,
conducted in the case, We find appellee's petitioner most respectfully submits that the
bare allegation that appellant Teofilo Carlos Court of Appeals committed a serious
II was merely purchased from an indigent reversible error in applying Section 1, Rule
couple by appellant Felicidad Sandoval, on 19 (now Section 1, Rule 34) of the Rules of
the whole, insufficient to support what could Court providing for judgment on the
well be a minor's total forfeiture of the rights pleadings, instead of Rule 35 governing
arising from his putative filiation. Summary Judgments;
Inconsistent though it may be to her
previous statements, appellant Felicidad 3. That in reversing and setting aside the
Sandoval's declaration regarding the Summary Judgment and, in lieu thereof,
illegitimate filiation of Teofilo Carlos II is entering another remanding the case to the
more credible when considered in the light court of origin for further proceedings,
of the fact that, during the last eight years of petitioner most respectfully submits that the
his life, Teofilo Carlos allowed said appellant Court of Appeals committed grave abuse of
the use of his name and the shelter of his discretion, disregarded judicial admissions,
household. The least that the trial court made findings on ground of speculations,
could have done in the premises was to surmises, and conjectures, or otherwise
conduct a trial on the merits in order to be committed misapplications of the laws and
able to thoroughly resolve the issues misapprehension of the
pertaining to the filiation of appellant Teofilo facts.9 (Underscoring supplied)
Carlos II.8
Essentially, the Court is tasked to resolve whether a
On November 22, 2006, petitioner moved for marriage may be declared void ab initio through a
reconsideration and for the inhibition of the ponente, judgment on the pleadings or a summary judgment
Justice Rebecca De Guia-Salvador. The CA denied and without the benefit of a trial. But there are other
the twin motions. procedural issues, including the capacity of one who
is not a spouse in bringing the action for nullity of
Issues marriage.

In this petition under Rule 45, petitioner hoists the Our Ruling
following issues:

33
I. The grounds for declaration of absolute nullity SEC. 17. Trial. - (1) The presiding judge
of marriage must be proved. Neither judgment shall personally conduct the trial of the case.
on the pleadings nor summary judgment is No delegation of evidence to a
allowed. So is confession of judgment commissioner shall be allowed except as to
disallowed. matters involving property relations of the
spouses.
Petitioner faults the CA in applying Section 1, Rule
1910 of the Revised Rules of Court, which provides: (2) The grounds for declaration of absolute
nullity or annulment of marriage must be
SECTION 1. Judgment on the pleadings. - proved. No judgment on the pleadings,
Where an answer fails to tender an issue, or summary judgment, or confession of
otherwise admits the material allegations of judgment shall be allowed. (Underscoring
the adverse party's pleading, the court may, supplied)
on motion of that party, direct judgment on
such pleading. But in actions for annulment Likewise instructive is the Court's pronouncement
of marriage or for legal separation, the in Republic v. Sandiganbayan.13 In that case, We
material facts alleged in the complaint shall excluded actions for nullity or annulment of marriage
always be proved. from the application of summary judgments.

He argues that the CA should have applied Rule 35 Prescinding from the foregoing
of the Rules of Court governing summary judgment, discussion, save for annulment of marriage
instead of the rule on judgment on the pleadings. or declaration of its nullity or for legal
separation, summary judgment is applicable
Petitioner is misguided. The CA did not limit its to all kinds of actions.14 (Underscoring
finding solely within the provisions of the Rule on supplied)
judgment on the pleadings. In disagreeing with the
trial court, the CA likewise considered the provisions By issuing said summary judgment, the trial court
on summary judgments, to wit: has divested the State of its lawful right and duty to
intervene in the case. The participation of the State
Moreover, even if We are to sustain the is not terminated by the declaration of the public
applicability of the rules on summary prosecutor that no collusion exists between the
judgment to the case at bench, Our perusal parties. The State should have been given the
of the record shows that the finding of the opportunity to present controverting evidence before
court a quo for appellee would still not be the judgment was rendered.15
warranted. x x x11
Both the Civil Code and the Family Code ordain that
But whether it is based on judgment on the the court should order the prosecuting attorney to
pleadings or summary judgment, the CA was correct appear and intervene for the State. It is at this stage
in reversing the summary judgment rendered by the when the public prosecutor sees to it that there is no
trial court. Both the rules on judgment on the suppression of evidence. Concomitantly, even if
pleadings and summary judgments have no place in there is no suppression of evidence, the public
cases of declaration of absolute nullity of marriage prosecutor has to make sure that the evidence to be
and even in annulment of marriage. presented or laid down before the court is not
fabricated.
With the advent of A.M. No. 02-11-10-SC, known as
"Rule on Declaration of Absolute Nullity of Void To further bolster its role towards the preservation of
Marriages and Annulment of Voidable Marriages," marriage, the Rule on Declaration of Absolute Nullity
the question on the application of summary of Void Marriages reiterates the duty of the public
judgments or even judgment on the pleadings in prosecutor, viz.:
cases of nullity or annulment of marriage has been
stamped with clarity. The significant principle laid SEC. 13. Effect of failure to appear at the
down by the said Rule, which took effect on March pre-trial. -  (a) x x x
15, 200312 is found in Section 17, viz.:

34
 (b) x x x If there is no collusion, the court the regular courts. On the other hand, the
shall require the public prosecutor to concern of the State is to preserve marriage
intervene for the State during the trial on the and not to seek its
merits to prevent suppression or fabrication dissolution.17 (Underscoring supplied)
of evidence. (Underscoring supplied)
The new Rule recognizes that the husband and the
Truly, only the active participation of the public wife are the sole architects of a healthy, loving,
prosecutor or the Solicitor General will ensure that peaceful marriage. They are the only ones who can
the interest of the State is represented and protected decide when and how to build the foundations of
in proceedings for declaration of nullity of marriages marriage. The spouses alone are the engineers of
by preventing the fabrication or suppression of their marital life. They are simultaneously the
evidence.16 directors and actors of their matrimonial true-to-life
play. Hence, they alone can and should decide when
II. A petition for declaration of absolute nullity of to take a cut, but only in accordance with the
void marriage may be filed solely by the husband grounds allowed by law.
or wife. Exceptions: (1) Nullity of marriage cases
commenced before the effectivity of A.M. No. 02- The innovation incorporated in A.M. No. 02-11-10-
11-10-SC; and (2) Marriages celebrated during SC sets forth a demarcation line between marriages
the effectivity of the Civil Code. covered by the Family Code and those solemnized
under the Civil Code. The Rule extends only to
Under the Rule on Declaration of Absolute Nullity marriages entered into during the effectivity of the
of Void Marriages and Annulment of Voidable Family Code which took effect on August 3, 1988.18
Marriages, the petition for declaration of absolute
nullity of marriage may not be filed by any party The advent of the Rule on Declaration of Absolute
outside of the marriage. The Rule made it Nullity of Void Marriages marks the beginning of the
exclusively a right of the spouses by stating: end of the right of the heirs of the deceased spouse
to bring a nullity of marriage case against the
SEC. 2. Petition for declaration of absolute surviving spouse. But the Rule never intended to
nullity of void marriages. - deprive the compulsory or intestate heirs of their
successional rights.
(a) Who may file. - A petition for declaration
of absolute nullity of void marriage may be While A.M. No. 02-11-10-SC declares that a petition
filed solely by the husband or the wife. for declaration of absolute nullity of marriage may be
(Underscoring supplied) filed solely by the husband or the wife, it does not
mean that the compulsory or intestate heirs are
without any recourse under the law. They can still
Section 2(a) of the Rule makes it the sole right of the
protect their successional right, for, as stated in the
husband or the wife to file a petition for declaration
Rationale of the Rules on Annulment of Voidable
of absolute nullity of void marriage. The rationale of
Marriages and Declaration of Absolute Nullity of Void
the Rule is enlightening, viz.:
Marriages, compulsory or intestate heirs can still
question the validity of the marriage of the spouses,
Only an aggrieved or injured spouse may file not in a proceeding for declaration of nullity but upon
a petition for annulment of voidable the death of a spouse in a proceeding for the
marriages or declaration of absolute nullity settlement of the estate of the deceased spouse filed
of void marriages. Such petition cannot be in the regular courts.19
filed by compulsory or intestate heirs of the
spouses or by the State. The Committee is
It is emphasized, however, that the Rule does not
of the belief that they do not have a legal
apply to cases already commenced before March
right to file the petition. Compulsory or
15, 2003 although the marriage involved is within the
intestate heirs have only inchoate rights
coverage of the Family Code. This is so, as the new
prior to the death of their predecessor, and,
Rule which became effective on March 15, 200320 is
hence, can only question the validity of the
prospective in its application. Thus, the Court held
marriage of the spouses upon the death of a
in Enrico v. Heirs of Sps. Medinaceli,21 viz.:
spouse in a proceeding for the settlement of
the estate of the deceased spouse filed in

35
 As has been emphasized, A.M. No. 02-11- a cause of action. Thus, in Niñal v.
10-SC covers marriages under the Family Badayog,  the Court held that the children
Code of the Philippines, and is prospective have the personality to file the petition to
in its application.22 (Underscoring supplied) declare the nullity of marriage of their
deceased father to their stepmother as it
Petitioner commenced the nullity of marriage case affects their successional rights.
against respondent Felicidad in 1995. The marriage
in controversy was celebrated on May 14, 1962. xxxx
Which law would govern depends upon when the
marriage took place.23 In fine, petitioner's personality to file the
petition to declare the nullity of marriage
The marriage having been solemnized prior to the cannot be ascertained because of the
effectivity of the Family Code, the applicable law is absence of the divorce decree and the
the Civil Code which was the law in effect at the time foreign law allowing it. Hence, a remand of
of its celebration.24 But the Civil Code is silent as to the case to the trial court for reception of
who may bring an action to declare the marriage additional evidence is necessary to
void. Does this mean that any person can bring an determine whether respondent Orlando was
action for the declaration of nullity of marriage? granted a divorce decree and whether the
foreign law which granted the same allows
We respond in the negative. The absence of a or restricts remarriage. If it is proved that a
provision in the Civil Code cannot be construed as a valid divorce decree was obtained and the
license for any person to institute a nullity of same did not allow respondent Orlando's
marriage case. Such person must appear to be the remarriage, then the trial court should
party who stands to be benefited or injured by the declare respondent's marriage as bigamous
judgment in the suit, or the party entitled to the avails and void ab initio but reduced the amount of
of the suit.25 Elsewise stated, plaintiff must be the moral damages from P300,000.00
real party-in-interest. For it is basic in procedural law to P50,000.00 and exemplary damages
that every action must be prosecuted and defended from P200,000.00 to P25,000.00. On the
in the name of the real party-in-interest.26 contrary, if it is proved that a valid divorce
decree was obtained which allowed Orlando
to remarry, then the trial court must dismiss
Interest within the meaning of the rule means
the instant petition to declare nullity of
material interest or an interest in issue to be affected
marriage on the ground that petitioner
by the decree or judgment of the case, as
Felicitas Amor-Catalan lacks legal
distinguished from mere curiosity about the question
personality to file the same.29 (Underscoring
involved or a mere incidental interest. One having no
supplied)
material interest to protect cannot invoke the
jurisdiction of the court as plaintiff in an action. When
plaintiff is not the real party-in-interest, the case is III. The case must be remanded to determine
dismissible on the ground of lack of cause of whether or not petitioner is a real-party-in-
action.27 interest to seek the declaration of nullity of the
marriage in controversy.
Illuminating on this point is Amor-Catalan v. Court of
Appeals,28 where the Court held: In the case at bench, the records reveal that when
Teofilo died intestate in 1992, his only surviving
compulsory heirs are respondent Felicidad and their
True, under the New Civil Code which is the
son, Teofilo II. Under the law on succession,
law in force at the time the respondents
successional rights are transmitted from the moment
were married, or even in the Family
of death of the decedent and the compulsory heirs
Code, there is no specific provision as to
are called to succeed by operation of law.30
who can file a petition to declare the nullity
of marriage; however, only a party who can
demonstrate "proper interest"  can file the Upon Teofilo's death in 1992, all his property, rights
same. A petition to declare the nullity of and obligations to the extent of the value of the
marriage, like any other actions,  must be inheritance are transmitted to his compulsory heirs.
prosecuted or defended in the name of the These heirs were respondents Felicidad and Teofilo
real party-in-interest  and must be based on II, as the surviving spouse and child, respectively.

36
Article 887 of the Civil Code outlined who are with respondent Felicidad. This is so, considering
compulsory heirs, to wit: that collateral relatives, like a brother and sister,
acquire successional right over the estate if the
(1) Legitimate children and descendants, decedent dies without issue and without ascendants
with respect to their legitimate parents and in the direct line.
ascendants;
The records reveal that Teofilo was predeceased by
(2) In default of the foregoing, legitimate his parents. He had no other siblings but petitioner.
parents and ascendants, with respect to Thus, if Teofilo II is finally found and proven to be
their legitimate children and descendants; not a legitimate, illegitimate, or adopted son of
Teofilo, petitioner succeeds to the other half of the
estate of his brother, the first half being allotted to
(3) The widow or widower;
the widow pursuant to Article 1001 of the New Civil
Code. This makes petitioner a real-party-interest to
(4) Acknowledged natural children, and seek the declaration of absolute nullity of marriage of
natural children by legal fiction; his deceased brother with respondent Felicidad. If
the subject marriage is found to be void ab initio,
(5) Other illegitimate children referred to in petitioner succeeds to the entire estate.
Article 287 of the Civil Code.31
It bears stressing, however, that the legal personality
Clearly, a brother is not among those considered as of petitioner to bring the nullity of marriage case is
compulsory heirs. But although a collateral relative, contingent upon the final declaration that Teofilo II is
such as a brother, does not fall within the ambit of a not a legitimate, adopted, or illegitimate son of
compulsory heir, he still has a right to succeed to the Teofilo.
estate. Articles 1001 and 1003 of the New Civil Code
provide: If Teofilo II is proven to be a legitimate, illegitimate,
or legally adopted son of Teofilo, then petitioner has
ART. 1001. Should brothers and sisters or no legal personality to ask for the nullity of marriage
their children survive with the widow or of his deceased brother and respondent Felicidad.
widower, the latter shall be entitled to one- This is based on the ground that he has no
half of the inheritance and the brothers and successional right to be protected, hence, does not
sisters or their children to the other half. have proper interest. For although the marriage in
controversy may be found to be void from the
ART. 1003. If there are no descendants, beginning, still, petitioner would not inherit. This is
ascendants, illegitimate children, or a because the presence of descendant,
surviving spouse, the collateral relatives illegitimate,34 or even an adopted child35 excludes the
shall succeed to the entire estate of the collateral relatives from inheriting from the decedent.
deceased in accordance with the following
articles. (Underscoring supplied) Thus, the Court finds that a remand of the case for
trial on the merits to determine the validity or nullity
Indeed, only the presence of descendants, of the subject marriage is called for. But the RTC is
ascendants or illegitimate children excludes strictly instructed to dismiss the nullity of
collateral relatives from succeeding to the estate of marriage case for lack of cause of action if it is
the decedent. The presence of legitimate, proven by evidence that Teofilo II is a legitimate,
illegitimate, or adopted child or children of the illegitimate, or legally adopted son of Teofilo
deceased precludes succession by collateral Carlos, the deceased brother of petitioner.
relatives.32 Conversely, if there are no descendants,
ascendants, illegitimate children, or a surviving IV. Remand of the case regarding the question of
spouse, the collateral relatives shall succeed to the filiation of respondent Teofilo II is proper and in
entire estate of the decedent.33 order. There is a need to vacate the disposition of
the trial court as to the other causes of action before
If respondent Teofilo II is declared and finally proven it.
not to be the legitimate, illegitimate, or adopted son
of Teofilo, petitioner would then have a personality to Petitioner did not assign as error or interpose as
seek the nullity of marriage of his deceased brother issue the ruling of the CA on the remand of the case

37
concerning the filiation of respondent Teofilo II. This marriage between respondent Felicidad
notwithstanding, We should not leave the matter Sandoval and the late Teofilo Carlos;
hanging in limbo.
2. If Teofilo Carlos II is proven to be the
This Court has the authority to review matters not legitimate, or illegitimate, or legally adopted
specifically raised or assigned as error by the son of the late Teofilo Carlos, the RTC is
parties, if their consideration is necessary in arriving strictly INSTRUCTED to DISMISS the action
at a just resolution of the case.36 for nullity of marriage for lack of cause of
action;
We agree with the CA that without trial on the merits
having been conducted in the case, petitioner's bare 3. The disposition of the RTC in Nos. 1 to 8
allegation that respondent Teofilo II was adopted of the fallo of its decision is VACATED AND
from an indigent couple is insufficient to support a SET ASIDE.
total forfeiture of rights arising from his putative
filiation. However, We are not inclined to support its The Regional Trial Court is ORDERED to conduct
pronouncement that the declaration of respondent trial on the merits with dispatch and to give this case
Felicidad as to the illegitimate filiation of respondent priority in its calendar.
Teofilo II is more credible. For the guidance of the
appellate court, such declaration of respondent No costs.
Felicidad should not be afforded credence. We
remind the CA of the guaranty provided by Article
167 of the Family Code to protect the status of SO ORDERED.
legitimacy of a child, to wit:

ARTICLE 167. The child shall be considered

legitimate although the mother may have
declared against its legitimacy or may have
been sentenced as an adulteress.
(Underscoring supplied)

It is stressed that Felicidad's declaration against the

legitimate status of Teofilo II is the very act that is
proscribed by Article 167 of the Family Code. The
language of the law is unmistakable. An assertion by
the mother against the legitimacy of her child cannot
affect the legitimacy of a child born or conceived
within a valid marriage.37

Finally, the disposition of the trial court in favor of

petitioner for causes of action concerning
reconveyance, recovery of property, and sum of
money must be vacated. This has to be so, as said
disposition was made on the basis of its finding that
the marriage in controversy was null and void ab
initio.

WHEREFORE, the appealed Decision

is MODIFIED as follows:

1. The case is REMANDED to the Regional

Trial Court in regard to the action on the
status and filiation of respondent Teofilo
Carlos II and the validity or nullity of

38