G.R. No. L-27940. June 10, 1971
FRANCISCO MILITANTE III, PLAINTIFF-APPELLANT, VS. ANTERO EDROSOLANO AND MANUEL BELLOSILLO, DEFENDANTS-APPELLEES.
FERNANDO, J.:
What is involved in this appeal from an order of dismissal by the
lower court is whether or not plaintiff has a cause of action to nullify a
judgment obtained, so it was alleged, through collusion, enabling defendant,
now appellee Manuel Bellosillo,
to acquire on execution the property of the other defendant, now appellee Antero Edrosolano, who was thus afforded a means of escape from
satisfying whatever liability might be imposed on him in a then pending case
filed by plaintiff for damages for a breach of
contract of carriage. A lawsuit is
intended precisely to assure that a right may be vindicated. Thereby the party to whom is imputed the
correlative duty could, if indeed called for, be made to comply with what is
incumbent upon him or to respond in damages.
The aggrieved party is thus entitled to be heard by a court of justice.
There is greater need for adherence to this principle if, as must be
assumed in this case for a motion to dismiss presupposes the hypothetical
admission of the facts alleged, defendants did make a mockery of the solemn
processes of the law, converting a judicial proceeding into an instrument of
injustice against the plaintiff. At the
very least then, he should not be denied the opportunity to prove that such a
deplorable turn of events did transpire.
The lower court was of a different mind.
It sustained the motion to dismiss, unable to discern a cause of action
in his favor. What it did lacks
justification. We reverse.
Plaintiff, in his complaint dated January 3, 1967, after
setting forth the jurisdictional facts, alleged that in a pending case
filed on September 6, 1965,[1]
he sued for damages arising from a breach of contract of carriage defendant Antero Edrosolano.[2]
He was able to secure an order of preliminary attachment on the property of
such defendant on January 18, 1966.[3]
When the Provincial Sheriff of Iloilo, however, sought to attach equipment used
by him as a public service operator, defendant Bellosillo
filed a third-party claim asserting that he had previously bought, on February
28, 1966, all of the former’s the TPU equipment.[4]
Upon inquiry, plaintiff learned that on or about January 22, 1963, defendant Bollosillo
filed a case for collection against defendant Edrosolano
in the sum of Forty Five Thousand Pesos (P45, 000.00), purportedly arising from
a promissory note dated February 1,
1960, executed by the latter.[5]
Then came the crucial allegation that
the aforesaid civil case was based on a fictitious cause of action because such
promissory note was without lawful consideration whatsoever.[6]
Defendant Bellosillo,
according to the complaint, was not and could not be in a position to loan such
amount to his co-defendant Edrosolano.[7] Immediately upon the filing of the said
civil case on January 22, 1963,
defendant Edrosolano received on the same date copy
of the complaint and summons although it was not coursed through the Office of
the Provincial Sheriff or the City Sheriff which is the usual and standard
procedure in the service of summons and other processes and writs.[8] Inspite of receipt
by said defendant of the complaint and summons, he did not file any answer and
allowed his co-defendant Bellosillo to take judgment
against him by default, one being rendered on February 25, 1963.[9] Considering these facts, it was plaintiff’s
assertion that the decision rendered on February 25, 1963 in the aforesaid
civil case is null and void ab initio the filing of the said civil case being a
clever and fraudulent scheme perpetrated by the defendant Edrosolano
with the blessings of his co-defendant for the purpose of defeating or evading
money claims against him arising from his business as a public carrier operator
not only in the City and Province of Iloilo but in the Island of Panay.[10] Moreover, while the decision was rendered on
February 25, 1963, it having attained finality thirty (30) days from receipt by
defendant Edrosolano who did not appeal from the said
decision, it was only on January 19, 1966 when defendant Bellosillo
caused the execution thereof after plaintiff had already instituted his civil
case for damages against defendant Edrosolano and an
order for issuance of preliminary attachment issued, apparently in their
fraudulent desire to evade the satisfaction of whatever civil liability of the
defendant Edrosolano might be adjudged in favor of
plaintiff.[11] In the aforesaid execution sale, on February
7, 1966, defendant Edrosolano allowed without protest
the acquisition of all the units he possessed as a public service operator,
conservatively valued at Three Hundred Thousand Pesos (P300,000.00), for the
supposed adjudged claim of only P52,000.00.[12] Plaintiff would impress on the lower court
then that unless the aforesaid decision was revoked and declared a nullity
together with all the proceedings had therewith, defendant Edrosolano
would be able to evade his responsibility as a public service operator and his
civil liabilities as such operator to the general public as well as the
passengers and his creditors including plaintiff.[13] His prayer was for declaring such judgment
null and void ab initio
and for damages.[14]
To the above complaint, the response of the defendants was a
motion to dismiss filed on February 6, 1967 on the ground that it stated no
cause of action, as there was no showing of a right on the part of the
plaintiff and the violation thereof by defendants. It is their contention that whatever right
may be possessed by plaintiff, “same is still expectant and contingent, it
being solely dependent upon the final judgment that may be rendered by the
Court in the aforesaid Civil Case No. 6838 in which said writ of attachment was
issued and claimed by herein plaintiff to be basis of his right to annul the
judgment rendered in other Civil Case No. 6216.
That is, if judgment is rendered in his favor. But the possibility of it also being
dismissed eventually in favor of therein defendant Edrosolano
(one of the herein defendants) is not at all remote * * *. These contingencies are always true in every
case.”[15]
The concluding paragraph of such motion reads:
“Hence, until and unless said Civil Case No. 6838, upon which lies
and rests the right of herein plaintiff to seek annulment of that judgment in
Civil Case No. 6216 is finally deterÂmined and adjudged by the court, the
latter has no legal ground to claim now he has already such right. And having none, no cause of action for the
present exists against herein defendants.”[16]
Then, on February 24, 1967,
came the order of dismissal, the lower court holding “that the essential
requisites of a cause of action are not present in plaintiff’s complaint.”[17]
It thus sustained the theory of defendants that, there being no judgment as yet
in favor of the plaintiff, he could not be said to have suffered any damage
when his action was filed on January 3,
1967.
The appeal was duly taken to this Court on a question of law,
namely, the correctness of the order of dismissal based on the finding that the
complaint did not state a cause of action.
The appeal of plaintiff, as noted, is meritorious; there was a
conspicuous failure on the part of the lower court to abide by the authoritative
doctrines.
1. The maintenance of the
rights under any legal system calls for the appropriate remedy in the event of
their disregard. The party who is
thereby injured is entitled to redress.
The courts exist for that purpose.
He has, in the technical language of the law, a cause of action if by
what defendant does or fails to do there is disrespect shown for any of his
legal claims.[18]
The judiciary is expected then to exercise the utmost care and circumspection
in passing upon a motion to dismiss on the ground of the absence thereof lest,
by its failure to manifest a correct appreciation of the facts alleged and
deemed hypothetically admitted, what the law grants or recognizes is
effectively nullified. If that happens,
there is a blot on the legal order. The
law itself stands in disrepute.
There is need, therefore, for a judicious appraisal of the
circumstances which, according to plaintiff’s complaint, provided the basis for
his suit. It would be a plain departure
from what has been so consistently held by this Court if, as was done by the
lower court, the response to the assertion of a legal right violated was one of
indifference. Nor could it find
justification in the pretext that his complaint would be proper only if he
would be successful in a pending suit for damages. By then it may be too late, his victory good
only on paper. What cannot be denied in
the face of his complaint is that if the judgment based on collusion between
the defendants would not be set aside, then any hope of recovery, not only on
the part of plaintiff, but of any other creditor similarly situated, would
indeed be futile.
No decision has been cited; and none can be found which, on the
above facts, would justify a holding that no cause of action was shown. For the doctrine consistently adhered to is
to avoid the likelihood of plaintiff’s recourse to the courts for the
satisfaction of his just claims being rendered nugatory. While not precisely in point, what was set
forth in Adamos v. J.M. Tuason
and Co.[19]
bears repeating. In the language of
Justice Makalintal, who penned the decision: “It is a well-settled rule that in a
motion to dismiss based on the ground that the complaint fails to state a cause
of action, the question submitted to the court for determination is the
sufficiency of the allegations in the complaint itself. Whether those allegations are true or not is
beside the point, for their truth is hypothetically admitted by the
motion. * * * So rigid is the norm
prescribed that if the court should doubt the truth of the facts averred it
must not dismiss the complaint but require an answer and proceed to hear the
case on the merits. (Republic
Bank v. Cuaderno, L-22399, March 30, 1967).”[20]
Such a doctrine goes back to a 1914 decision, Paminsan
v. Costales,[21]
where it was held: “The test of the
sufficiency of the facts found in a petition to constitute a cause of action is
whether or not, admitting the facts alleged, the court
could render a valid judgment upon the same, in accordance with the prayer of
the petition.”[22]
Certainly on the facts alleged in the complaint, a valid judgment in favor of
plaintiff could be rendered.
2. More specifically, the
view entertained by the lower court in its order of dismissal that an action
for annulment of judgment can be availed of only by those principally or secondarily
bound is contrary to what had been so clearly declared by this Court in the
leading case of Anuran v. Aquino,[23]
decided in 1918. It was emphatically
announced therein: “There can be no
question as to the right of any person
adversely affected by a judgment to maintain an action to enjoin its
enforcement and to have it declared a nullity on the ground of fraud and collusion
practiced in the very matter of obtaining the judgment when such fraud is
extrinsic or collateral to the matters involved in the issues raised at the
trial which resulted in such judgment; * * *.”[24] Such a principle was further fortified by an observation made by this
Court through Justice Ozaeta in Garchitorena
v. Sotelo.[25]
These are his words: “The collusive
conduct of the parties in the foreclosure suit constituted an extrinsic or
collateral fraud by reason of which the judgment rendered therein may be
annulled in this separate action.
(Anuran v. Aquino and Ortiz, 38 Phil., 29)
Aside from the Anuran-Aquino case, innumerable
authorities from other jurisdictions may be cited in support of the
annulment. But were there not any
precedent to guide us, reason and justice would compel us to lay down such
doctrine for the first time.”[26]
WHEREFORE, the order of dismissal of February 10, 1967 by Judge Valerio
V. Rovira is set aside and this case is remanded to
the lower court for appropriate proceedings in accordance with this
opinion. With costs
against defendants.
Makalintal, Zaldivar,
Teehankee, Villamor, and Makasiar, JJ., concur.
Dizon, J., concurs in a separate opinion.
Concepcion, C.J., and Reyes, J., concur
in the opinion of Mr. Justice Dizon.
Barredo, J., concurs in a separate opinion.
Ruiz Castro, J., took no
part.
[1]
Civil Case No. 6838 of the Court of First Instance of Iloilo.
[2]
Complaint, Record on Appeal, par. 3, p. 2.
[3]
Ibid, par. 4, p. 2.
[4]
Ibid, par. 5, pp. 2 and 3.
[5]
Ibid, par. 7, p. 3. The complaint
was docketed
as Civil Case No. 6216 of the Court of First Instance of Iloilo.
[6]
Ibid, par. 8, p. 3.
[7]
Ibid, par. 9, p. 4.
[8]
Ibid, par. 10, p. 4.
[9]
Ibid, par. 11, p. 4.
[10]
Ibid, pars. 12 and 13, pp. 4 and 5.
[11]
Ibid, par. 14, p. 5.
[12]
Ibid, par. 15, pp. 5 and 6.
[13]
Ibid, par. 16, p. 6.
[14]
Ibid, petitory part of Complaint, p. 7.
[15]
Motion to Dismiss of Defendant, Record on Appeal, pp. 12 and
13.
[16]
Ibid, p. 13.
[17]
Order of Dismissal, Record on Appeal, p. 30.
[18]
According to Ma-ao Sugar Central Co. v.
Barrios: “A cause of action is an
act or omission of one party in violation of the legal right or rights of the
other; and its essential elements are legal right of the plaintiff, correlative
obliÂgation of the defendant, and act or omission of the defendant in violation
of said legal right.” 79 Phil. 666, 667 (1947). This decision is cited with approval in Remitere v. Vda. de Yulo, L-19751, Feb. 28, 1966 16 SCRA 251; Casenas v. Rosales, L-18707, Feb. 28, 1967, 19 SCRA 462; Espinosa v. Belda, L-17988, March
31, 1967, 19 SCRA 715.
[19]
L-21957, Oct. 14, 1968, 25 SCRA 529.
[20]
Ibid, pp. 533-534.
[21]
28 Phil. 487 (1914).
Paminsan v. Costales
has been cited subsequently in the following cases: De Jesus v. Belarmino,
95 Phil. 365 (1954); Dimayuga v. Dimayuga, 96 Phil. 859 (1955); Marabiles
v. Quito, 100 Phil. 64 (1956); Wise & Co., Inc. v. City of
Manila, 101 Phil. 244 (1957); A.U. Valencia & Co. v. Layug, 103 Phil. 747 (1958); Garcon v. Redemptorist Fathers, L-23510, May 30, 1966, 17 SCRA 341;
Republic Bank v. Cuaderno, L-22399, March 30,
1967, 19 SCRA 671; La Suerte Cigar & Cigarette
Factory v. Central Azucarera del Danao, L-23017, May 23, 1968, 23 SCRA 686.
[22]
Ibid, p. 489.
[23]
38 Phil. 29 (1918).
[24]
Ibid, pp. 32-33.
[25]
74 Phil. 25, 30 (1942). Ramirez v. Baltazar,
L-25059, August 30, 1968,
24 SCRA 918, may likewise be cited.
[26]
Ibid, p. 30.
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CONCURRING OPINION
BARREDO, J.:
I concur in the judgment overruling the order of dismissal of the
lower court impugned in this appeal, but my reasons for so holding are quite
different from those discussed by our able colleague, Justice Fernando, in the opinion
he has written for the Court, hence this separate opinion. Frankly, I do not see enough cause to express
apprehension that by the questioned action of the trial judge there might be a
“blot in the legal order” and that “the law itself stands in dispute.”
Much less do I share the reproof that His Honor’s “response to the
assertion of a legal right was one of indifference.” Indeed, I am afraid
there is very little ground to hold that the lower court’s reasoning in
upholding appellee’s motion to dismiss is altogether
without basis. A cursory reading of the
appealed order of dismissal would readily reveal that the trial judge merely
sustained appellee’s basic position in their motion
that appellant’s action is premature, since the basis of the latter’s alleged
cause of action is only a levy on attachment, not of execution, and, besides,
that it is only after the action to annul the judgment in the allegedly
collusive suit referred to in the complaint has been successfully prosecuted to
final judgment that said appellant could be entitled to question the validity
of the sale on execution in favor of appellee Bellosillo. In other
words, His Honor did not consider at all whether or not there are sufficient
allegations in the complaint to warrant a conclusion that indeed the judgment
in question was a collusive one and instead, he simply held that appellant’s
claim of preference in favor of the levy on attachment in his suit against appellee Edrosolano over the sale
on execution in favor of appellant Bellosillo had yet
no reason for being until after the judgment under which said sale had been
made has been set aside by another final judgment and that, moreover, appellant
could have preserved, on the other hand his claimed priority had he filed
the required counterbond against appellee
Bellosillo’s third-party claim. Evidently, His Honor’s frame of reference was
the alleged priority of the attachment over the sale on execution and not the
alleged nullity of the judgment from which the sale on execution drew its
life. Otherwise stated, the trial judge
failed to grasp the thrust of appellant’s apparent theory in his complaint;
what His Honor saw as appellant’s
cause of action was nothing more than an assertion that since he had a levy on
attachment in his favor, necessarily, the
sale on execution in favor of appellee Bellosillo must be set aside, particularly, because it is
the result of a suit only alleged to be but not yet finally adjudged as colÂlusive. Undoubtedly, such a view may not be entirely
correct, but my point is that
it is far from manifesting indifferrence to a
rightful claim properly alleged. I do
not find any attempt of the trial judge to so ignore or disregard any elemental
facts alleged to constitute appellant’s supposed cause of action to warrant the
reminder from Adamos and Republic Bank, both cited in
the main opinion, that a motion to dismiss assumes hypothetically, at least,
the facts alleged in the
complaint. Withal, as I shall discuss a
little later, the cases of Anuran v. Aquino and Garchitorena v. Sotelo likewise
referred to in the main opinion have very little, if any, relevant application
to the present case.
I say that His Honor’s view of appellant’s cause of action may
not be entirely correct because my own analysis of the circumstances portrayed
in appellant’s complaint convinces me that the real fault in the framing of
appellant’s complaint lies in the apparently secondary significance it has
given to the superior legal efficacy of the levy on attachment on the
properties herein involved in his favor over the execution sale in favor of appellee
Bellosillo.
While, as I have already observed, the court a quo used the said levy on
attachment as its main frame of reference, it fell short of realizing that
since appellant’s levy on attachment was made prior to the levy on execution,
it impressed upon the properties thus levied on an effective lien that subjects
the sale on execution in favor of appellee Bellosillo to the results of the action filed by appellant
as Civil Case No. 6838 against appellee Edrosolano. (See
concurring and dissenting opinion of Justice Moreland in Kuenzle & Streiff v. Villanueva, 41 Phil.
611, 622-670)[1]
Thus, the more efficacious and speedier cause
of action I read in appellant’s complaint here in question is that the
defendants in the court below, which perhaps should have included the sheriff, have not accorded due respect to the levy on
attachment in his favor, and on the basis of this cause of action, I hold that
the relief to which appellant is entitled is for the court to order that
the sheriff restore the said levy on attachment and continue the same even
without the need of any counterbond against the
third-party claim of appellee Bellosillo,
unless there is anyway by which the sale on
execution in favor of said third-party claimant
and appellee
Bellosillo may be publicly recorded as being subject
to the levy on attachment and the results of the action in favor of appellant.
It is my considered opinion that this approach to appellant’s
case is a closer approximation to the remedial rules applicable thereto. Besides, I feel that this view will afford
appellant safer and faster relief than the theory of collusion which the main
opinion capitalizes. In this way, the
roadblock I perceive consisting of what I believe is still an unsettled
question of law may perhaps be avoided, since it may not be imperative to pass
upon it here.
In this connection, the trial court ended its consideration of
the order of dismissal in question thus:
“An action for annulment of a judgment is subsidiary and can
be availed of by those principally or secondarily bound. It is essential that the claim of the
plaintiff in Civil Case No. 6838 should have existed before the cause of action
in Civil Case No. 6216.”
thereby drawing
the following ruling from the main opinion:
“More specifically, the view entertained by the lower court in
its order of dismissal that an action for annulment of judgment can be availed
of only by those principally or secondarily bound is contrary to what had been
so clearly declared by this Court in the leading case of Anuran v. Aquino, (38 Phil. 29 [1918] decided in 1918. It was emphatically announced therein: ‘There can be no question as to the right of
any person adversely affected by a judgment to maintain an action to enjoin its
enforcement and to have it declared a nullity on the ground of fraud and
collusion practiced in the very matter of obtaining the judgment when such
fraud is extrinsic or collateral to the matters involved in the issues raised
at the trial which resulted in such judgments; x x x.” (Ibid, pp. 32-33.) Such a
principle was further fortified by an observation made by this Court through
Justice Ozaeta in Garchitorena
v. Sotelo (74 Phil. 25, 30 [1942]. Ramirez v. Baltazar, L-25059, August
30, 1968, 24 SCRA 918, may likewise be cited.) These are his
words: ‘The collusive conduct of the
parties in the foreclosure suit constituted an extrinsic or collateral fraud by
reason of which the judgment
rendered therein may be annulled in this separate action. (Anura v. Aquino and Ortiz, 38 Phil. 29) Aside from the Anuran-Aquino case, innumerable authorities from other
jurisdictions may be cited in support of the annulment. But were there not any precedent to guide us,
reason and justice would compel us to lay down such doctrine for the first
time.” (Ibid., p. 30)
I prefer to look at His Honor’s above holding with more
liberality, if not with a more accurate analysis of its real intended
import. As I understand it, all that the
trial judge must have meant to say was that inasmuch as the breach of the
contract of carriage alleged by appellant took place in 1965 whereas the
judgment being assailed as collusive was rendered and had become final way back
in 1963, appellant cannot allege he
was among those intended to be prejudiced thereby. Truth to tell, I would like to reserve my
opinion on this point for a more appropriate occasion, specially because it
seems to me that the circumstances alleged in the complaint under review,
numerous and impressive as they
are, do not sufficiently establish, even
if assumed to be true, a clear case for the annulment of a judgment by
collusion. I feel that, as the said complaint stands, there
are not enough allegations to specifically relate the appellant’s cause of action
in Civil Case No. 6838 to the motivations of Civil Case No. 6216. This should explain why I find little application of Anuran and Garchitorena here.
My impression is that in
citing these cases, the main opinion assumes, without the least attempt to show
the correctness of such an assumption, that the herein complaint alleges all
the essential facts which constitute the elements of the cause of action in dispute regarding a collusive suit.
I, therefore, vote to overrule the order of dismissal appealed from
and to order the remand of this case to the lower court for the corresponding
further proceedings, including possible amendments by appellant to further strengthen his theory of collusion, with
the specific instruction that the sheriff who made the levy on attachment in
favor of appellant in Civil Case No. 6838
be ordered impleaded as defendant, consistent
with the above opinion, with costs against appellees.
[1]
While somehow the majority opinion discussed the relation between the lien of
an attachment and the preference of credits under the Civil Code, (under the
Code of Civil Procedure, Act 190, and the old Civil Code), Justice Moreland had
this to say of said discussion:
“I agree that the decision
should be reversed. I cannot agree,
however, to the discussion of the questions taken up and considered by the
court in the majority opinion and decided.
The whole subject of preference is covered and the field of attachments is fully occupied, when
there is, in my opinion, nothing in the case which warrants it. The only question presented is this: Is an attaching creditor entitled to apply
the proceeds of the sale of the property attached to the payment of the
judgment obtained in the action in which the attachment was levied as against a
mere judgment creditor of the same defendant whose judgment was obtained after
the attachment was levied but before judgment on the action? To determine this question there was no
necessity of discussing the whole law of preferred credits, or of attempting
the impossible task of uniting or harmonizing it with the law of attachments;
for, it is conceded by the court that, whether the attachment is considered a
lien or a preference, it was to be preferred to a mere judgment subsequently
obtained which had no relation to or connection with the property
attached. There was no need, therefore,
to attempt to exhaust the subject of preference; and particularly there was no reason for seriously
emasculating, indeed, completely destroying, the essential character of the
attachment as known, recognized and established by
courts and jurists from the earliest times.
This is clear not only from the fact already stated, viz,
that the attachment was entitled to priority no matter whether it were
considered a lien or a preference, but also from the fact that the court, after
it had emasculated attachments in general, and this one in particular, held
that it was still superior to the judgment of the defendant. Certainly, if it was superior after
emasculation, it was before; and it is queer logic which leads one to
destroy the essential and individual character of a right in order to
demonstrate that it is superior to some other.
“Moreover, there was no
necessity for such a discussion as the opinion contains, with the uncertainty
and confusion which will follow in several branches of the law, for another
reason: If the court had simply followed
the plain language of the Act relating to attachments that would have ended the
matter at once. Its provisions are clear
and the rights of the attaching creditor are set out so explicitly and plainly
that to escape the obvious effects of the Act one must give it a construction
and interpretation so strained and unnatural and so in
violation of all precedent as to destroy the Act itself – and, as a result, to make
a statute instead of apply a statute.
A mere reading of the provisions of the law of attachments as it is found in Act No. 190 of the Philippine
Commission should end the controversy instantly. Its proÂvisions are as clear as language can
make them and are simplicity itself.
Moreover, so far as securing to the attaching creditor his rights
in the proÂperty attached is concerned, they are mandatory.” (41 Phil.
622-623.)
Additionally, he analyzed the main
opinion thus:
“I want, first of all, to
point out what the court holds in this case and the train of argument by which
it arrives at its conclusion. As I have
said, I find no fault with the bare finding that the attachment must be upheld. With that I agree. That was a resolution of the question, and
the sole question, before the court.
But the court decides much more than that; and this, together with the
style and character of the argument found in the opinion, is what I object
to. Near the end of the opinion the court
holds that an attachment lien is ‘subject to all x x x statutory preferences by which such property is affected
at the time of the levy x x x.’ This was clearly unnecessary
to a decision of the question presented.
The judgment in this case was subsequent to the levy of the attachment
and, therefore, the situation which would have arisen if it had been prior to
the levy was not presented. But I would
not object so seriously to the obiter dictum if it contained a
correct statement of the law with which it deals. When, however, it is not only obiter
but wrong also, I not only feel constrained to dissent but to register that
dissent as well. Nothing is more
objectionable than erroneous obiter dicta.” (Ibid, p. 624.)
The burden of the separate opinion is
that the lien of attachment is superior to the codal
preference of a judgment as a credit under the Article of the Civil Code then
which is now Art. 2244 of the new
Civil Code. This view differs
from what he considered obiter dictum in the main opinion, since
the latter recognized the priority of attachments only over after-acquired judgments. In the case at bar, the issue of preference
is between appellant’s attachment levy and the judgment alleged to be collusive
which was rendered and had become final
two years before appellant’s levy. This
case could, therefore, be the opportune one for this Court to chose definitely
for doctrinal purposes between the main opinion and that of Justice Moreland,
but inasmuch as We are ordering its remand to the lower court for appropriate
proceedings, it would be more fitting
to settle the issue in the event it comes back to Us after its trial on the
merits.
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CONCURRING OPINION
DIZON, J.:
The undersigned concurs with the majority opinion penned by Mr.
Justice Enrique M. Fernando, for the reason hereinafter set forth.
Appellant’s complaint was dismissed by the lower court upon the
ground that the facts stated therein do not constitute a cause of action in his
favor. The undersigned disagrees.
A Cause of Action has been defined as a delict
or wrong committed by one party in violation of the right of another.
On the other hand, a writ of Preliminary Attachment is a
provisional remedy issued, upon an 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 might be secured in said action by the attaching creditor
against the defendant. Likewise it is settled in this jurisdiction that
the effect of a writ of Preliminary Attachment levied upon the property or
properties of the defendant is to create or impose thereon a lien in favor of
the attaching creditor in relation to the purpose for which the writ was
issued.
In the light of the foregoing, the undersigned believes that the
facts alleged in appellant’s comÂplaint are sufficient to constitute a cause of
action in his favor and against the appellees.
The “right” of appellant is obviously the lien that he
had acquired upon the properties of appellees by
reason of the writ of Preliminary Attachment levied thereon in connection with
Civil Case No. 6838 mentioned in the majority opinion. On the other hand, the delict
violative of, or that tends to violate that right is
the writ of execution and/or the execution sale of the attached properties had
in connection with the judgment rendered in Civil Case No. 6216 likewise mentioned in the majority
opinion, clear as it is that any right derived from said execution sale either
actually violates or tends to render ineffective the lien acquired by appellant upon said properties.
Of course, whether appellant will be able to substantiate or
establish the right he claims, or whether, in law, such right is superior to
any other right derived from or acquired as a result of the execution sale
mentioned heretofore, is a matter dependent upon the conclusion that the trial
court might arrive at after a trial on the basis of the facts established by
the evidence.
PREMISES CONSIDERED, I vote to reverse the apÂpealed decision.