BENITO DE LOS REYES ET AL., PETITIONERS, VS. COURT OF FIRST INSTANCE OF BATANGAS AND CHUA PUA HERMANOS, RESPONDENTS.

This is an original petition for the writ of certiorari filed in this court
by Benito de los Reyes and wife, for the purpose of quashing an order of the
Court of First Instance of Batangas granting an attachment of property belonging
to the plaintiffs, in an action instituted in the Court of First Instance of the
Province of Batangas, wherein the respondents Chua Pua Hermanos are plaintiffs
and the petitioners defendants. The cause has been here submitted upon the
answer of the defendants.

The question presented in this case is whether in a proceeding to foreclose
a mortgage upon land, the court entertaining such proceeding can issue an
attachment against other property of the defendants than such as is included in
the mortgage, upon a showing, by affidavit, that the mortgaged property is
insufficient to pay the mortgage debt and that the defendants are attempting to
alienate their unmortgaged property to other persons with intent to defraud the
plaintiff.

We are of the opinion that the court has such authority. The affidavit
accompanying the application for attachment shows, in conformity with the
requirement of section 426 of the Code of Civil Procedure, that the value of the
mortgaged property is not sufficient to satisfy the debt. In addition to this it
is alleged in the affidavit that the defendants are attempting to dispose of
their other property, meaning property not mortgaged to the plaintiff, with
intent to defraud the plaintiff. This is in conformity with the requirement of
subsection 5 of section 412 of the Code of Civil Procedure.

Under section 424 of the Code of Civil Procedure, an attachment may be
obtained at or after the commencement of the plaintiff’s “action.” The word
“action,” as used in this provision, includes in our opinion a proceeding for
the foreclosure of a mortgage. This is of course directed primarily to the
property covered by the mortgage, but under section 260 of the Code of Civil
Procedure, the mortgage creditor is entitled to judgment for any excess
remaining due upon the mortgage debt after the mortgaged property shall have
been sold; and this judgment for the balance due is entered upon motion in the
foreclosure proceeding itself. This fact, taken in connection with the statement
of the affidavit to the effect that the mortgaged property was insufficient in
value to cover the indebtedness due to the plaintiff, made a case where it was
proper to grant an attachment upon the facts stated.

It results that the trial court did not act irregularly in excess of its
jurisdiction, in granting the attachment which is the subject pf this
petition.

The petition will therefore he dismissed, and it is so ordered, with costs
against the petitioners.

Avanceña, C. J., Johnson, Malcolm, Villamor, Ostrand, Johns and
VillarReal, JJ., concur.