MARIA VILLONGCO, CARMEN BERNAL AND RAMON BERNAL, PETITIONERS VS. HON. ALEJANDRO J. PANLILIO, PRESIDING JUDGE, BRANCH A, OF THE COURT OF FIRST INSTANCE OF MANILA; VICTORINA GAERL…

This is an action of certiorari instituted by petitioners to annul an
order of the Court of First Instance of Manila in civil case No. 15963
(of said court), dissolving a writ of preliminary attachment issued by
it ex-parte upon the filing of the complaint in said case. The facts
giving rise to the action may be briefly stated as follows:

On February 9, 1947 respondents Gaerlan leased to petitioners one door
of a building owned by them at No. 611 Arlegui, Quiapo, for a period of
one year at P250 a month. As petitioners failed to pay rents for the
months of August and September, respondent Gaerlan brought an action in
the municipal court of Manila to eject petitioners from the door leased
to them. In their answer in the municipal court, the petitioners
alleged, as a special defense and by way of counterclaim, that the
respondents had misrepresented that they had the right to continue
occupying the land on which the building leased in part was
constructed, thereby inducing petitioners to spend P8,000 in
remodelling and improving the premises leased, when as a matter of fact
they (respondents) had no more right to continue on the land. They,
therefore, prayed that respondents’ action be dismissed and that
judgment be rendered against them for the amount of the counterclaim.
The municipal court sustained the action and sentenced petitioners to
vacate the premises and pay the rentals due, and dismissed the
counterclaim on the ground that it was beyond the court’s jurisdiction,
adding that the petitioners could bring the corresponding action
thereon in the proper court. The petitioners appealed to the Court of
First Instance but as their lawyers failed to appear on the date of the
trial, judgment was rendered against them for all the rents then due.
They filed a petition for relief and upon its denial, they came to this
Court on a petition for certiorari (G. R. No. L-4039), but their
petition was denied. The judgment of this Court was promulgated on
January 28, 1952 and promptly thereafter, i.e., on March 5, 1952, they
filed civil case No. 15963.

In their complaint in this case,
the petitioners allege that the respondents had assured them that they
(respondents) had the right to occupy the land on which the building
was constructed for a period of at least two years, and on the strength
of this assurance, petitioners spent P8,000 for the remodelling and
improvement of the premises leased, but that in August, 1947 they
discovered to their surprise that the representation was false because
the owner of the land was just then suing the respondents for the
purpose of ejecting them from the land. To their complaint, they
attached an affidavit to the effect that respondents had caused the
damages claimed by fraudulent concealment, that respondents have
concealed, removed or disposed of their properties, credits or accounts
collectible to defraud their creditors, that there is no other security
for the claim sought to be enforced, etc. Evidently, on the strength of
this affidavit, the Court of First Instance issued a writ of
preliminary attachment ex-parte.

On March 22, 1952
respondents herein filed (1) a motion to dismiss on the ground that the
action was barred by a prior judgment and (2) an urgent motion to
dissolve the writ of preliminary attachment, also on the ground that
the action is barred by the prior judgment and, therefore, failed to
state a cause of action. Oppositions to both motions were filed by
petitioners on April 4, 1952. On May 2, 1952, respondents filed a “Supplement to urgent motion to dissolve ex-parte writ of preliminary attachment.”
In this supplement, respondents deny that they are guilty of fraud, as
petitioners knew that respondents did not have a long term lease; that
the allegation that they were concealing, removing or disposing of
their properties is a lie, as the petitioners have not given positive
showing that such disposition was taking place; that their allegation
that there is no other security to respond for the claim (contained in
the complaint) is a brazen lie, because petitioners well know that
respondents have a restaurant, own a refrigerator and a piano, and own
three lots in Mandaluyong; and that the action is for a rescission of a
lease, in which case the dissolution of the writ is proper. They,
therefore, concluded that the writ was improperly issued. A reply to
this supplement was filed by petitioners, stating that the writ was not
improperly issued. On May 12, 1952 the court denied the motion to
dismiss, and on May 26, 1952 the respondents filed their answer to the
complaint. On September 24, 1952 they notified the petitioners that
they would submit their motion of March 22, 1952 for the resolution of
the court. On September 27, 1952 the court dissolved the writ.
Petitioners filed a motion for reconsideration, but this was denied. It
is against these orders that the present action of certiorari is
directed.

In order to properly understand petitioners’
claims and contentions, one must note that two motions were filed for
the dissolution of the preliminary attachment, that of March 22 based
on the ground that the action is barred by a prior judgment, and that
of May 2 entitled “supplement to urgent motion” which alleges that the
allegations contained in the affidavit supporting the petition for the
attachment are attacked as false and unfounded. The order dissolving
the attachment reads:

“En cuanto a la mocion de 22
de marzo de 1952, presentada por la representacion de los demandados,
pidiendo la disolucion del embargo preventivo el Juzgado la encuentra
bien fundada y meritoria, y accede, por la presente, a la misma. El
embargo preventivo en cuestion queda disuelto.”

The
principal contention of the petitioners is that the respondent judge
acted without or in excess of jurisdiction in dissolving the
attachment, because the motion to dissolve had been impliedly rejected
by the court when it overruled in its order of May 12 the motion to
dismiss on the ground of a prior judgment. The contention would be
correct if the order attacked were to be considered alone and by
itself. The argument is based on the erroneous assumption that what the
court considered is the motion of March 22 alone. The motion to
dissolve then under the consideration of the court is not the original
one dated March 22, but that one and its supplement of May 2. If there
was error in the order because it referred to the motion of March 22
alone, then it was merely a clerical, formal one, because the
supplementary motion had become integrated into the original motion
that it had supplemented. Obviously the court dissolved the attachment
because of the supplement to the first motion, i.e., because it was of
the belief that the reasons stated in the supplement were sufficient to
belie or destroy the allegations contained in the affidavit presented
in support of the petition for the issuance of the preliminary
attachment. The contention that the court lacked authority to dissolve
because it had rejected the plea of res judicata in its order
overruling the motion to dismiss on this ground, must be dismissed, the
premise on which it is based being false or incorrect.

A
second contention is that the motion to dissolve the attachment was
impliedly waived by the presentation of the answer. The claim is novel:
there is no reason or principle on which it may be made to rest. The
issues raised in the motion to dissolve are different from those
developed in the main action. The former refer to the supposed attempt
of defendants to fraudulently conceal, remove, or dispose of their
property to defraud the plaintiffs, the absence of any funds or
properties of the defendants against which plaintiffs’ claims could be
asserted, etc. The latter, to the supposed fraud committed by
defendants in concealing the fact that their right to the property
leased had terminated. When the defendants filed their answer, no
mention is made of the facts contained in their supplement to their
motion to dismiss, because their answer could deal with the facts
constituting the cause of action and these alone, and not the facts
giving rise to the right to a preliminary attachment. The filing of the
answer, therefore, may not be claimed as a waiver of the motion to
dissolve the injunction.

Let us now consider the merits of
the motion to dissolve (the original and the supplement) to determine
if there has been an abuse of discretion in granting it. Petitioners
seem to rely on the fact that as the allegations of the complaint and
of their affidavit are in due form, the defendants had the initiative
and the burden of proving the allegations of their affidavit to be
false or untrue, obligation which they failed to comply with, because
their motion to dismiss is not supported by any affidavit at all.

In their affidavit supporting the petition for the preliminary
attachment, petitioners had alleged that defendants had concealed that
their right to the land had ceased, that they have removed or
concealed, or about to remove or conceal or dispose of their property
to defraud their creditors, and that there is no other security for
claim of the plaintiffs. These allegations are expressly traversed in
the supplementary motion to dismiss, which contains the following
statements: that plaintiffs knew that defendants had no long-term lease
to the property, that plaintiffs’ allegation that the defendants are
about to remove, conceal or dispose of their properties is a lie, that
it is not true that there is no other property of defendants against
which plaintiffs’ claims could be enforced, etc. The above allegations
of the supplementary motion put in issue the facts alleged in the
plaintiffs’ affidavit, and it was then incumbent upon plaintiffs to
prove the facts in issue either by affidavits or depositions, or by
other forms of evidence (Rule 123, Sec. 100.) The affidavit supporting
the petition for the issuance of the preliminary attachment may have
been sufficient to justify the issuance of the preliminary writ, but it
cannot be considered as proof of the allegations contained in the
affidavit. The reason is obvious. The allegations are mere conclusions
of law, not statement of facts. No acts of the defendants are ever
mentioned in the affidavit to show or prove the supposed concealment to
defraud creditors. Said allegations are affirmative allegations, which
plaintiffs had the obligation to prove (Sec. 70, Rule 123.) As to the
alleged absence of any properties of defendants to respond for
plaintiffs’ claim, the defendants stated in their supplementary motion
that they did have properties, a restaurant, a piano, a refrigerator,
and real estate in Mandaluyong. This statement of new fact was not
denied by plaintiffs.

It is evident, therefore, that the
resolution of the motion to dissolve was submitted to the court without
plaintiffs having in any way complied with their legal obligation to
prove or show the truth of their affirmative allegations. Furthermore,
the allegations of facts in the supplementary motion to dissolve are
such as are natural, logical and credible, more worthy of belief than
the bare generalized assertions of supposed fraud, supposed concealment
or alienation, contained in the affidavit of plaintiffs. Under the
circumstances, the respondent could not have made any other ruling than
that the attachment had been improperly issued and should, therefore,
be dissolved.

The petition must be, as it hereby is, denied,
and the preliminary injunction issued dissolved, with costs against
petitioners.

Paras, C. J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Bautista Angelo, JJ., concur.