VENTURA GUZMAN, PETITIONER, VS. ALFREDO CATOLICO AND SIMEON RAMOS, JUDGE OF FIRST INSTANCE OF ISABELA, RESPONDENTS.

This is a petition filed by Ventura
Guzman, praying this court, after proper proceedings, to render
judgment declaring illegal and void and setting aside the writ of
preliminary attachment issued by the respondent judge, Honorable Simeon
Ramos, as judge of the Court of First Instance of Isabela, and ordering
the dissolution thereof.

The pertinent facts necessary for the resolution of the legal question raised in the present case are as follows:

On March 8, 1937, the respondent Alfredo Catolico brought an action
against the herein petitioner Ventura Guzman in the Court of First
Instance of Isabela, for the recovery from the latter of the amount of
his fees for services rendered by him as attorney, praying, at the same
time, for the issuance of a writ of preliminary attachment against all
of the properties adjudicated to said petitioner in special proceedings
No. 179 of said court. As grounds for the issuance of said writ of
preliminary attachment, he alleged: “That the herein defendant is
trying to ‘sell and dispose of the properties adjudicated1 to him, with
intention to defraud his creditors, particularly the herein plaintiff,
thereby rendering illusory the judgment that may be rendered against
him, inasmuch as he has no other properties outside the same to answer
for the fees the court may fix in favor of the plaintiff, this case
being one of those mentioned by the Code of Civil Procedure warranting
the issuance of a writ of preliminary attachment” (paragraph 8 of the
complaint). At the foot of the complaint there appears the following
affidavit: “I, Alfredo Catolico, of age, married and resident of
Tuguegarao, Cagayan, after being duly sworn, declare: That I am the
same plaintiff in this case; that I have prepared and read the same
(complaint) and that all the allegations thereof are certain and true,
to the best of my knowledge and belief.”

In view of said complaint and affidavit, the respondent judge, on
March 10, 1937, issued an order granting the petition and ordering the
issuance of a writ of preliminary attachment, after the filing of the
corresponding bond by the plaintiff.

On April 15,, 1937, said defendant Ventura Guzman filed a motion
for the cancellation of said writ of preliminary attachment on the
ground that it had been improperly, irregularly and illegally issued,
there being no allegation, either in the complaint or in the affidavit
solemnizing it, that there is no other sufficient security for the
claim sought to be enforced by the action; that the amount due to the
plaintiff, above the legal set-off and counterclaim, is as much as the
sum for which the preliminary attachment has been granted, and that the
affidavit of the plaintiff is based on mere information and belief.

Said motion was denied by the respondent judge in an order of July 10, 1937.

The only question to be decided in this case is whether or not the
requisites prescribed by law for the issuance of a writ of preliminary
attachment have been complied with.

Section 426 of the Code of Civil Procedure provide that “A judge or
justice of the peace shall grant an order of attachment when it is made
to appear to the judge or justice of the peace by the affidavit of the
plaintiff, or of some other person who knows the facts, that a
sufficient cause of action exists, and that the case is one of those
mentioned in section four hundred and twenty-four, and that there is no
other sufficient security for the claim sought to be enforced by the
action, and that the amount due to the plaintiff above all legal
set-offs or counterclaims is as much as the sum for which the order is
granted.”

The petitioner, in attacking the legality and validity of the writ
of preliminary attachment, which is the subject matter of this
petition, relies on the alleged lack of an allegation in the complaint
or in the affidavit to the effect “that there is no sufficient security
for the claim sought to be enforced by the action and that the amount
alleged to be due to the plaintiff above all legal set-offs and
counterclaims is as much as the sum for which the writ has been
granted”, and on the fact” that the affidavit is based on mere
information and belief of the plaintiff.

With respect to the last requisite just stated above, the affidavit
is not defective because in it the therein plaintiff and herein
respondent Alfredo Catolico states “that all the allegations thereof
are certain and true, to the best of my knowledge and belief”, and not
that they are so according to his information and belief.

As to the other two requisites, there is no allegation, either in
the complaint .or in the affidavit solemnizing it, to the effect that
there is no other sufficient security for the claim which the plaintiff
seeks to enforce by his action, and that the amount due him from the
defendant, above all legal set-offs and counterclaims, is as much as
the sum for which the writ of preliminary attachment has been granted.
Now then, does the omission of these two requisites constitute a defect
preventing a judge of the Court of First Instance from issuing a writ
of preliminary attachment?

Attachment is a juridical institution which has for its purpose to
secure the outcome of the trial, that is, the satisfaction of the
pecuniary obligation really contracted by a person or believed to have
been contracted by him, either by virtue of a civil obligation
emanating from contract or from law, or by virtue of some crime or
misdemeanor that he might have committed, and the writ issued, granting
it, is executed by attaching and safely keeping all the movable
property of the defendant, or so much thereof as may be sufficient to
satisfy the plaintiff’s demands (sec. 428, Act No. 190), or by filing a
copy of said writ with the register of deeds for the province in which
the real property is situated, whether standing upon the records in the
name of the defendant or not appearing at all upon the record, which
constitutes a limitation of ownership or the right to enjoy or dispose
of a thing without further limitations than those established by law
(art. 348, Civil Code), since the owner of the property attached cannot
dispose of the same free of all liens and encumbrances. The law
authorizing the issuance of a writ of preliminary attachment should,
therefore, be construed strictly in favor of the defendant, and before
issuing an order to that effect, the judge should require that all the
requisites prescribed by law be complied with, without which a judge
acquires no jurisdiction to issue the writ. If he does so in spite of
noncompliance with said requisites, he acts in excess of his
jurisdiction and the writ so issued by him will be null and void.

“The jurisdiction of attachment proceedings being a
special one, it cannot be legitimately exercised unless the attaching
creditor pursues substantially the essential requirements of the
statute, and the court can act only under the special power limited by
the statute and according to the forms of procedure it prescribes. * *
*” (6 C. J., 88, paragraph 121.)

“Where the statute requires
the affidavit to show that defendant is indebted to plaintiff in an
amount specified, or that the latter is entitled to recover such an
amount, over and above all legal payments, set-offs, or counterclaims,
compliance with this requirement is essential to confer jurisdiction to
issue the writ.” (6 C. J., 132, paragraph 201.)

“An
affidavit is fatally defective where it fails to comply, at least
substantially, with a statutory requirement that it shall state that
the indebtedness for which the action is brought has not been secured
by any mortgage or lien upon real or personal property, or any pledge
of personal property, or, if so secured, that the security has become
valueless. * * *” (6 C. J., 146, paragraph 231.)

For the foregoing considerations, this court is of the opinion and
so holds that failure to allege in a complaint or in the affidavit
solemnizing it, or in a separate one, the requisites prescribed by
section 426 of the Code of Civil Procedure for the issuance of a writ
of preliminary attachment that there is no other sufficient security
for the claim sought to be enforced by the action, and that the amount
due to the plaintiff above all legal set-offs or counterclaims is as
much as the sum for which the order is sought, renders a writ of
preliminary attachment issued against the property of a defendant
fatally defective, and the judge issuing it acts in excess of his
jurisdiction.

Wherefore, the writ of certiorari applied for is granted, and the
writ of preliminary attachment issued by the respondent judge in civil
case No. 1460 of the Court of First Instance of Isabela, wherein the
herein respondent Alfredo Catolico is plaintiff and the herein
petitioner Ventura Guzman is defendant, is declared null and void, with
costs to respondent Alfredo Catolico. So ordered.

Abad Santos, Imperial, Diaz, Laurel, and Concepcion, JJ., concur.