WRIT OF ATTACHMENT (NATURE STAGES OF ATTACHMENT AND CONTEMPORANEOUS SERVICE OF SUMMONS)

TORRES VS SATSATIN

AS TO THE CONTEMPORANEOUS SERVICE OF SUMMONS: It goes without saying that whatever be the acts done by the Court prior to the acquisition of jurisdiction over the person of defendant x x x issuance of summons,order of attachment and writ of attachmentx x xthesedo not and cannot bind and affect the defendant until and unless jurisdiction over his person is eventually obtained by the court,either by service on him of summons or other coercive process or his voluntary submission to the courts authority. Hence, when the sheriff or other proper officer commencesimplementationof the writ of attachment,it is essential that he serve on the defendant not only a copy of the applicants affidavit and attachment bond, and of the order of attachment, as explicitly required by Section 5 of Rule 57, but also thesummonsaddressed to said defendant as well as a copy of the complaint x x x.

Thus, it is indispensable not only for the acquisition of jurisdiction over the person of the defendant, but also upon consideration of fairness, to apprise the defendant of the complaint against him and the issuance of a writ of preliminary attachment and the grounds therefor that prior or contemporaneously to the serving of the writ of attachment, service of summons, together with a copy of the complaint, the application for attachment, the applicants affidavit and bond, and the order must be served upon him.

STAGES OF ATTACHMENT (THREE STAGES):

1. first, the court issues the order granting the application; 2. second, the writ of attachment issues pursuant to the order granting the writ; and 3. third, the writ is implemented.

TAKE NOTE: For the initial two stages, it is not necessary that jurisdiction over the person of the defendant be first obtained.However,once the implementation of the writ commences,the court must have acquired jurisdiction over the defendant, for without such jurisdiction, the court has no power and authority to act in any manner against the defendant. Any order issuing from the Court will not bind the defendant.FACTS:Siblings Torres (petitioners) each owned adjacent 20,000 square meters track of land in Dasmarias, Cavite. Nicanor Satsatin, through petitioners mother Agripina Aledia, was able to convince the siblings to sell their property and authorize him via SPA, to negotiate for its sale. Nicanor offered to sell the properties to Solar Resources, to which Solar allegedly agreed to buy the three parcels of land plus the property of one Rustica Aledia for P35, 000,000. Petitioners claimed that Solar has already paid the entire purchase price, however Nicanor only remitted P9, 000,000 out of the P28, 000,000 sum they are entitled to and that Nicanor had acquired a house and lot and a car (which he registered in the names of his children). Despite the repeated verbal and written demands, Nicanor failed to remit the balance prompting the petitioners to file a complaint for sum of money against the family Satsatin.Petitioners filed an Ex Parte Motion for the Issuance of a Writ of Attachment, alleging among other things, that respondent was about to depart the country and that they are willing to post a bond fixed by court. After filing a Motion for Deputation of Sheriff, which the RTC granted, it issued a Writ of Attachment (WOA) on November 15. On November 19, after serving a copy of the WOA upon the Satsatins, the sheriff levied their real and personal properties. On November 21, the summons and copy of complaint was served upon the respondents. Respondents filed their answer and a Motion to Discharge Writ of Attachment, claiming, among others, that: the bond was issued before the issuance of WOA, the WOA was issued before the summons was received. Respondents posted a counter-bond for the lifting of WOA, which was denied along with MR. Aggrieved, they filed with CA a Petition for Certiorari, Mandamus and Prohibition with Preliminary Injunction and TRO under Rule 65. CA ruled in favor of respondents and denied petitioners MR hence the petition for review on certiorari with the SC.ISSUE: Whether or not The Honorable Court of Appeals erred in ordering the lifting of the writ of attachment pursuant to section 13, rule 57 of the Revised Rules of Civil Procedure.RULING:No. In the case at bar, the CA correctly found that there was grave abuse of discretion amounting to lack of or in excess of jurisdiction on the part of the trial court in approving the bond posted by petitioners despite the fact that not all the requisites for its approval were complied with. In accepting a surety bond, it is necessary that all the requisites for its approval are met; otherwise, the bond should be rejected.

A writ of preliminary attachment is defined as a provisional remedy issued upon order of the court where an action is pending to be levied upon the property or properties of the defendant therein, the same to be held thereafter by the sheriff as security for the satisfaction of whatever judgment that might be secured in the said action by the attaching creditor against the defendant.

In the case at bar, the CA correctly found that there was grave abuse of discretion amounting to lack of or in excess of jurisdiction on the part of the trial court in approving the bond posted by petitioners despite the fact that not all the requisites for its approval were complied with. In accepting a surety bond, it is necessary that all the requisites for its approval are met; otherwise, the bond should be rejected.

Moreover, in provisional remedies, particularly that of preliminary attachment, the distinction between the issuance and the implementation of the writ of attachment is of utmost importance to the validity of the writ. The distinction is indispensably necessary to determine when jurisdiction over the person of the defendant should be acquired in order to validly implement the writ of attachment upon his person.

In Cuartero v. Court of Appeals, this Court held that the grant of the provisional remedy of attachment involves three stages: first, the court issues the order granting the application; second, the writ of attachment issues pursuant to the order granting the writ; and third, the writ is implemented. For the initial two stages, it is not necessary that jurisdiction over the person of the defendant be first obtained. However, once the implementation of the writ commences, the court must have acquired jurisdiction over the defendant, for without such jurisdiction, the court has no power and authority to act in any manner against the defendant. Any order issuing from the Court will not bind the defendant.

At the time the trial court issued the writ of attachment on November 15, 2002, it can validly to do so since the motion for its issuance can be filed at the commencement of the action or at any time before entry of judgment. However, at the time the writ was implemented, the trial court has not acquired jurisdiction over the persons of the respondent since no summons was yet served upon them. The proper officer should have previously or simultaneously with the implementation of the writ of attachment, served a copy of the summons upon the respondents in order for the trial court to have acquired jurisdiction upon them and for the writ to have binding effect. Consequently, even if the writ of attachment was validly issued, it was improperly or irregularly enforced and, therefore, cannot bind and affect the respondents.

Moreover, again assuming arguendo that the writ of attachment was validly issued, although the trial court later acquired jurisdiction over the respondents by service of the summons upon them, such belated service of summons on respondents cannot be deemed to have cured the fatal defect in the enforcement of the writ. The trial court cannot enforce such a coercive process on respondents without first obtaining jurisdiction over their person. The preliminary writ of attachment must be served after or simultaneous with the service of summons on the defendant whether by personal service, substituted service or by publication as warranted by the circumstances of the case. The subsequent service of summons does not confer a retroactive acquisition of jurisdiction.

The petition isDENIED.