HIJOS DE I. DE LA RAMA, PLAINTIFF AND APPELLEE, VS. JUAN ABRAHAM, JR., DEFENDANT AND APPELLANT.

On
May 18, 1920, the defendant obtained from the plaintiff a loan of
P30,000 with the obligation to pay the same on or before July 31, 1921.
To secure the payment of this loan, the defendant executed a second
mortgage on a parcel of land known as Hacienda Janiuay situated in the municipality of Janiuay, Province of Iloilo. This hacienda
is encumbered with a second mortgage in favor of the Philippine
National Bank for the amount of P9,000. As a security of the payment of
this loan, a first mortgage was also executed upon the sugar-cane
plantation of the said hacienda covering an area of twelve hectares pertaining to the 1920-21 harvest.

On the 19th of the same month of May, 1920, the defendant obtained
another loan of P25,000 from the plaintiff. To secure the payment of
this second loan, the defendant executed a second mortgage upon a
parcel of land known as Hacienda Paz situated in the municipality of Panitan, Province of Capiz. This same hacienda
was likewise encumbered with a second mortgage in the amount of
P15,835.33 in favor of the Philippine National Bank. Defendant,
furthermore, executed a first mortgage upon the plantation and sugar
cane of the 1920-21 harvest of the Hacienda Paz over an area covering 175 lacsas of newly planted cane to secure this loan.

It was agreed in both contracts of loan that the defendant would store
in the plaintiff’s warehouse at Iloilo the sugar that might be milled
from the mortgaged plantations and that the proceeds thereof would be
applied to the payment of the loan.

On January 21, 1922,
plaintiff filed the complaint in this case, alleging that the defendant
had not paid the amount of both loans, and praying that he be sentenced
to pay the sum of P67,761.09, which includes the agreed interest and
the amount stipulated in the penal clause of both contracts. The
complaint also prayed that an attachment be issued against the property
of the defendant so as to insure the effectiveness of the final
judgment that might be rendered, plaintiff alleging that the defendant
was selling and disposing of his property, not included in the
mortgages, for the purpose of avoiding the payment of his debt to the
plaintiff’s damage.

On February 8, 1922, the lower court
issued the writ of attachment prayed for. Inasmuch as the defendant
subsequently moved for the dissolution of the attachment, denying all
the facts under which the writ was issued, said court granted the
plaintiff ten days’ time within which to file sworn statements in
support of its allegations for the issuance of the attachment.
Plaintiff having failed to file the said sworn statements, the court
below on July 20, 1922, considering that the attachment was secured in
an irregular and improper manner, ordered the annulment and dissolution
of the writ of attachment.

Defendant in his answer, besides
denying generally and specifically the allegations of the complaint,
filed a cross-complaint and counterclaim for the sum of P136,851.88
which he alleged were the damages suffered by him on account of the
attachment.

The trial court rendered judgment sentencing the
defendant to pay the plaintiff the amount of P64,781.09 with legal
interest from January 22, 1922, the date of the filing of the
complaint, until full payment, and also the amount of P3,000, being the
penalty agreed upon in both contracts, and absolving the plaintiff from
the cross-complaint and counterclaim. From this judgment the defendant
now appeals.

It appears from the evidence that up to January
21, 1922, the sugar deposited by the defendant for the account of his
debts amounted only to the total value of P1,678.81.

On the
other hand, the amount of the two loans with the interest thereon and
other amounts that were added thereto on account of working implements,
transportation expenses and charges for storing the sugar, besides
other small amounts of money taken from the plaintiff, and the
penalties stipulated, make a total of P67,781.09, after deducting the
value of the sugar delivered, which sum the defendant was sentenced to
pay in the judgment appealed from.

In this appeal the
defendant does not question his liability for this amount; but claims
that he is entitled to the relief prayed for in his cross-complaint and
counterclaim.

The judgment appealed from holds that the
attachment prayed for by the plaintiff and issued by the court against
the property of the defendant was not premature, nor extemporaneous,
nor obtained with malice and without probable cause. We find that this
conclusion is supported by the evidence. Appellant, however, contends
that this finding is erroneous. In support of this contention, he
states that in the contract of loan between the plaintiff and the
defendant, there is no time fixed for the payment of the debt, which is
not correct because the last clause of the two contracts says that the
defendant has bound himself to pay the loan on or before July 31, 1921,
The complaint was filed subsequent to this date. Plaintiff also affirms
that, in holding that the attachment was not premature nor
extemporaneous, the trial court was laboring under the erroneous belief
that the defendant had mortgaged to his mother-in-law sugar-cane
plantations covered by the mortgages in favor of the plaintiff, when in
truth and in fact those plantations had nothing to do with the
mortgages. Supposing this to be true, it is the very allegation made by
plaintiff in its complaint as a ground for the issuance of the writ of
attachment, that is, that the defendant was disposing of his properties
not included in the mortgage. However it may be, the defendant admits
that he has sold a large portion of the sugar of the 1920-21 harvest,
which is the crop mortgaged. While the plaintiff alleges that in doing
this, he had obtained the consent of the plaintiff’s submanager, Mr.
Conlu, the latter, however, flatly denies having given his consent.

Appellant also contends that since the lower court, as above stated,
annulled the said attachment by an order of July 20, 1922, it could not
make the finding in the final judgment afterwards rendered, that the
said attachment was not obtained with malice, nor without probable
cause.

That writ of attachment was set aside by the court in
accordance with section 441 of the Code of Civil Procedure solely
because it considered that it was issued in an improper and irregular
manner. The action for damages by reason of the issuance of an
attachment, however, does not arise from the fact that the attachment
was obtained in an improper and irregular manner; it is necessary that
the final judgment rendered in the case shall state that the issuance
of the attachment was unjust and without sufficient cause. (Sec. 427,
Code of Civil Procedure.)

Our conclusion is that the finding
of the lower court that the attachment obtained by the plaintiff was
not unjust and was not issued without sufficient cause is not
erroneous; and consequently the defendant has no right to recover
damages by reason of said attachment.

The judgment appealed
from holds, furthermore, that the defendant had not sufficiently proven
having suffered the damages alleged by him in his cross-complaint and
counter-claim and the defendant also contends that this finding is
erroneous. Having reached the concision that the defendant is not
entitled to damages, it is useless to discuss whether or not there were
actual damages. At any rate, we find that the conclusion of the trial
court in this respect is also borne out by the evidence.

The judgment appealed from is affirmed with the costs against the appellant. So ordered.

Street, Malcolm, Villamor, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.