RICARDO T. SALAS AND MARIA SALAS, PETITIONERS, VS. HON. MIDPANTAO L. ADIL, AS JUDGE OF BRANCH II, COURT OF FIRST INSTANCE OF ILOILO, ROSITA BEDRO AND BENITA YU, RESPONDENTS.

Certiorari to nullify the Order of Attachment of May 13, 1977, as
well as the Writ of Attachment dated May 16, 1977, issued by respondent Judge
in Civil Case No. 10770 of the Court of First Instance of Iloilo, entitled
“Rosita Bedro and
Benita Yu v. Spouses Ricardo T. Salas and Maria Salas, et al.”.

On September 10, 1976, respondents Rosita Bedro
and Benita Yu filed the afore-mentioned civil action with the Court of First
Instance of Iloilo against herein petitioners Ricardo T. Salas and Maria Salas,
the Philippine Commercial & Industrial Bank, in its capacity as
Administrator of the Testate Estate of the deceased Charles Newton Hodges, and Avelina A. Magno, in her capacity
as Administratrix of the Testate Estate of the
deceased Linnie Jane Hodges, to annul the deed of
sale of Lot No. 5 executed by administrators of the Hodges Estate in favor of
the Spouses Ricardo T. Salas and Maria Salas and for damages.  The action for annulment was predicated upon
the averment that Lot No. 5, being a subdivi­sion road, is intended for public
use and cannot be sold or disposed of by the Hodges Estate.  The claim for damages was based on the
assertion that after defendant spouses purchased Lots Nos. 2 and 3, they also
purchased Lot No. 5 and thereafter “erected wooden posts, laid and
plastered at the door of the house on Lot No. 3, with braces of hardwood,
lumber and plywood nailed to the post”, thereby preventing Rosita Bedro and Benita Yu from using the road on the
afore-mentioned lot, Lot No. 5, and that as a result of such obstruction,
private respondents Rosita Bedro and Benita Yu
sustained actual damages in the amount of P114,000.00, plus the sum of
P1,000.00 as damages daily from June 30, 1976 due to the stoppage in the
construction of their commercial buildings on Lot No. 3, and moral damages in
the amount of P200,000.00.

In their answer to the complaint, the Salas spouses, after
specifically denying the material allegations in the complaint, stated that Lot
No. 5 had been registered in the name of the C. N. Hodges as their exclusive
private property and was never subjected to any servitude or easement of right
of way in favor of any person; that any occupants of Lots Nos. 2 and 3 have
direct access to Bonifacio Drive, a National Highway,
hence, Lot No. 5 is neither needed nor required for the egress or ingress of
the occupants thereof; and that private respondents, as a matter of fact, since
1964 had excluded and separated completely their property (Lots Nos. 2 and 3)
from Lot No. 5 by building a concrete wall on the boundary thereon without
providing any gate as entrance or exit towards Lot No. 5; and that private
respondents have no personality to question the validity of the deed of sale
over Lot No. 5 since they were not parties to the same and the sale was duly approved
by the probate court.

In a motion dated May 12, 1977, private respondents filed a
Motion for Attachment, alleging, among others, that the case was “for
annulment of a deed of sale and recovery of damages” and that the
defendants have removed or disposed of their properties or are about to do so
with intent to defraud their creditors especially the plaintiffs in this case.

On May 13, 1977,
respondent Judge issued ex parte a Writ
of Attachment “against the properties of the defendants particularly Lots
Nos. 1 and 4 of Psc-2157 less the buildings standing thereon upon the
plaintiffs filing a bond in the amount of P200,000.00
subject to the approval of this Court.” After a surety bond in the amount
of P200,000.00, executed on May 11, 1977 by the Central Surety and Insurance
Company as surety was filed, the writ itself was issued by respondent Judge on May 16, 1977, directing the Sheriff
to attach the properties above-mentioned. 
On May 17, 1977, the
Deputy Sheriff of Iloilo levied
upon the aforesaid properties of petitioners.

Contending that respondent Judge gravely abused his discretion in
issuing the said Writ of Attachment, petitioners filed the present petition.

In certiorari proceedings, the cardinal rule is that the court
must be given the opportunity to correct itself.  Thus, for the special civil action of
certiorari to prosper, there must be no appeal nor any
plain, speedy and adequate remedy in the ordinary course of law.  Petitioners, therefore, must exhaust all
available remedies in the lower court before filing a petition for certiorari, otherwise the petition shall be held to be
premature.

In the instant case, it appears that petitioners have adequate
remedy under the law.  They could have
filed an application with the court a quo for the discharge of the
attachment for improper or irregular issuance under section 13, Rule 57, of the
Revised Rules of Court, which provides the following:

“SEC. 13. Discharge of attachment
for improper or irregular issuance. 
– The party whose property has been attached may also, at any time
either before or after the release of the attached property, or before any
attachment shall have been actually levied, upon reasonable notice to the
attaching creditor, apply to the judge who granted the order, or to the judge
of the court in which the action is pending, for an order to discharge the
attachment on the ground that the same was improperly or irregularly
issued.  If the motion be made on
affidavits on the part of the party whose property has been attached, but not
otherwise, the attaching creditor may oppose the same by counter-affidavits or
other evidence in addition to that on which the attachment was made.  After hearing, the judge shall order the
discharge of the attachment if it appears that it was improperly or irregularly
issued and the defect is not cured forthwith.”

Considering that petitioners have not availed of this remedy, the
instant petition is premature.

We deem it necessary, however, for the guidance of respondent
Court and of the parties, to stress herein the nature of attachment as an
extraordinary provisional remedy.

A preliminary attachment is a rigorous remedy, which exposes the
debtor to humiliation and annoyance, such it should not be abused as to cause
unnecessary prejudice.  It is, therefore,
the duty of the court, before issuing the writ, to ensure that all the
requisites of the law have been complied with; otherwise the judge acts in
excess of his jurisdiction and the writ so issued shall be null and void.^[1]

In Carpio v. Macadaeg,^[2]
this Court said:

“Respondent Judge should not have issued the two writs of
preliminary attachment (Annexes C and C-1) on Abaya’s
simple allegation that the petitioner was about to dispose of his property,
thereby leaving no security for the satisfaction of any judgment.  Mere removal or disposal of property, by
itself, is not ground for issuance of preliminary attachment, notwithstanding
absence of any security for the satisfaction of any judgment against the
defendant.  The removal or disposal, to
justify preliminary attachment, must have been made with intent to defraud
defendant’s creditors.

“Respondent Judge in fact corrected himself.  Acting on petitioner’s motion to discharge
attachment and apparently believing the correctness of the grounds alleged
therein, he set aside the orders of attachment (Order of March 11, 1960, Annex
F).

“But reversing himself again, he set aside his order of March 11, 1960 (Annex K, dated March
29, 1960).  This he did apparently on Abaya’s contention that petitioner was about to remove or
dispose of his property in order to defraud his creditors, as examples of which
disposals he pointed to the alleged sale of the horses and of petitioner’s
office furniture * * *.  These averments
of fraudulent disposals were controverted by petitioner
who * * * reiterated the defenses against preliminary attachment which he had
previously enumerated in his petition to discharge the two orders of
attachment.  Thus the question of fraudulent
disposal was put in issue; and respondent Judge, before issuing the preliminary
attachment anew, should have given the parties opportunity to prove their
respective claims or, at the very least, should have provided petitioner with
the chance to show that he had not been disposing of his property in fraud of
creditors.” (citing National Coconut
Corporation v. Pecson, L-4296, Feb. 25, 1952, Villongco
v. Panlilio, L-6214, Nov. 20, 1953).

And in Garcia v. Reyes,^[3]
considering the allegation that the debtors were removing or disposing of some
of their properties with intent to defraud their creditors, this Court said
that “(a)ll in all due
process would seem to require that both parties further ventilate their
respective contentions in a hearing that could indeed reveal the truth.  Fairness would be served thereby, the demand
of reason satisfied.”

Considering the gravity of the allegation that herein petitioners
have removed or disposed of their properties or are about to do so with intent
to defraud their creditors, and further considering that the affidavit in
support of the preliminary attachment merely states such ground in general
terms without specific allegations of circumstances to show the reason why
plaintiffs believe that defendants are disposing of their properties in fraud
of creditors, it was incumbent upon respondent Judge to give notice to
petitioners and to allow them to present their position at a hearing wherein
evidence is to be received.

Moreover, it appears from the records that private respondents
are claiming unliquidated damages, including moral
damages, from petitioners.  The
authorities agree that the writ of attachment is not available in a suit for
damages where the amount claimed is contingent or unliquidated.

“We think, however, that a rule sufficient for the
determination of this case has been suggested and acted upon, and that the
remedy does not exist where unliquidated damages were
demanded.  * * *.  In Warwick v. Chase, 23 Md. 161, it is
said:  ‘It is necessary that the standard
for ascertaining the amount of damages claimed should not only appear, but that
it should be fixed and certain, and in no degree dependent on facts either
speculative or uncertain.  * * *.  The general rule is, that unliquidated
damages, * * * cannot be recovered by attachment, unless the contract affords a
certain measure or standard for ascertaining the amount of the damages * *
*.'”^[4]

Further:

“The statute authorizing the issuance of the writ of
garnishment and that relating to the issuance of the writ of attachment * * *
have not been construed as authorizing the writs to be issued when the
plaintiff’s suit is technically an action for debt.  Neither of the writs may be issued when the
suit is for damages for tort, but they may be issued when the plaintiff’s claim
arises out of contract either express or implied, and the demand is liquidated,
that is, the amount of the claim is not contingent, is capable of being
definitely ascertained by the usual means of evidence, and does not rest in the
discretion of the jury.”^[5]

WHEREFORE, the instant petition is hereby DENIED, in order
to enable petitioners to move before respondent Court for the discharge of the
attachment on the ground of its improper and irregular issuance, pursuant to
section 13, Rule 57, of the Revised Rules of Court, and for the aforesaid Court
to act thereon in accordance with the foregoing.

Fernando, Actg. C.J., Aquino, Concepcion, Jr., and Santos,
JJ.,
concur.

Abad Santos, J., did not take part.

Barredo, J., on
leave.

^[1]
Guzman v. Catolico, No.
45720, December
29, 1937, 65 Phil. 257, 261.

^[2]
L-17797, November 29, 1963,
9 SCRA 552, 554-556.

^[3]
L-27419, October 31, 1969, 30 SCRA 162, 171.

^[4]
Hochstadder, et al. v. Sam, 11
SW 408-409.

^[5]
Cleveland v. San
Antonio Building and Loan Association, 223 SW 2d 226, 228.