Case Digest Provisional Remedies

RULE 57, Section 1

Case Digest | ProvRem

PRELIMINARY ATTACHMENT

Calo vs. Roldan Facts: This is a petition for writ of certiorari against Judge Arsenio Roldan on the ground of exceeding his jurisdiction and acted with grave abuse of discretion in appointing a receiver of certain lands and their fruits. Regino Relova and Teodula Bartolome filed a complaint against Tranquilino Calo and Doroteo San Jose for conniving with each other, and through the use of force, stealth, threats, and intimidation, intend to enter and work or harvest existing fruits may be found in the lands allegedly owned and possessed by the plaintiffs. The plaintiffs prayed for the issuance of the preliminary injunction (WOPI) to be issued ex parte to immediately restrain, enjoin, and prohibit the defendants and their agents from entering and interfering with the harvest of the lands belonging to the plaintiffs. The defendants opposed the WOPI on the ground that they are owners of the lands and have been in actual possession thereof since 1925. The CFI Judge denied the petition for the WOPI on the ground that

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Shelu the defendants were in possessionAbapo of said lands.

actual

MR was filed but was not decided by the CFI. Plaintiffs then filed an urgent petition ex-parte praying that the MR of the order denying their petition for WOPI be granted and/or for the appointment of the receiver of the properties on the ground that: a. Plaintiffs have interest in properties in question and the fruits were in danger of being lost unless a receiver is appointed b. The appointment of a receiver was the most convenient and feasible means of preserving, administering, and or disposing of the properties in litigation which included their fruits Judge Roldan decided to consider the MR and granted the appointment of a receiver. Issue: WON it is proper for the plaintiffs to apply and be granted of the preliminary attachment. Held: According to the complaint filed by the plaintiffs, their action is one of ordinary injunction, for they alleged that they are the owners of the

RULE 57, Section 1

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PRELIMINARY ATTACHMENT

lands, and were in actual possession thereof and that the defendants with any legal right and through the use of force, stealth, threat, and intimidation, intend to enter the lands in violation of the plaintiff’s proprietary rights. In the present case, the plaintiffs alleged that they are the owners and were in actual possession of the lands described in the complaint and their fruits, the action of injunction filed by them is the proper and adequate remedy in law, for a judgment in favor of plaintiffs would quiet their title to said lands. The provisional remedies (PRs) denominated attachment, preliminary injunction, receivership, and delivery of personal property, provided in Rules 59, 60, 61, and 62 of the ROC, are remedies to which parties litigant may resort for the preservation or protection of their rights or interest, and for no other purpose, during the pendency of the principal action. If by the nature of such action does not require such protection or preservation, said remedies cannot be applied for and granted. To each kind of action, a proper provisional remedy is provided by law. The

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Shelu Rules of Court clearly specify Abapo the case in which they may be properly granted. Attachment may be issued only in the case or actions specifically stated in section 1, Rule 59, in order that the defendant may not dispose of his property attached, and thus secure the satisfaction of any judgment that may be recovered by plaintiff from defendant. For that reason a property subject of litigation between the parties, or claimed by plaintiff as his, cannot be attached upon motion of the same plaintiff. The special remedy of preliminary prohibitory injunction (PPI) lies when the plaintiff’s principal action is an ordinary action of injunction, that is when the relief demanded in the complaint consists in restraining the commission or continuance of the act complained of, either perpetually or for a limited period, or other conditions required by Section 3 of Rule 60 are present. The purpose of this PR is to preserve the status quo of the things subject of the action or the relation between the parties, in order to protect the rights of the plaintiff respecting the subject of the action during the pendency of the suit.

RULE 57, Section 1

Case Digest | ProvRem

PRELIMINARY ATTACHMENT

If no PPI were issued, the defendant may, before final judgment, do or continue the doing of the act which the plaintiff asks the court to restrain, thus make ineffectual the final judgment granting the relief sought by the plaintiff. But, a WOPI should not be granted to take the property out of the possession of one party to place it in the hands of another whose title has not been clearly established. A receiver may be appointed to take charge of personal or real property which is the subject of an ordinary civil action, when it appears that the party applying for the appointment of a receiver has an interest in the property or fund which is subject of the action or litigation. According to law, the PR proper to plaintiff’s action of injunction is a PPI, if plaintiff’s theory as set forth in the complaint, that he is the owner and in actual possession of the premises is correct. But as the lower court found at the hearing of the petition for preliminary injunction that the defendants were in possession of the lands, the lower court acted in accordance with law in denying the petition. From the foregoing it appears evident that the respondent judge

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Shelu acted in excess of his jurisdiction in appointing Abapo a receiver. Appointment of a receiver is not proper or does not lie in an action of injunction such as the one filed by the plaintiff. The petition for appointment of a receiver filed by the plaintiffs is based on the ground that it is the most convenient and feasible means of preserving, administering and disposing of the properties in litigation; and according to plaintiffs' theory or allegations in their complaint, neither the lands nor the palay harvested therein, are in litigation. The litigation or issue raised by plaintiffs in their complaint is not the ownership or possession of the lands and their fruits. It is whether or not defendants intend or were intending to enter or work or harvest whatever existing fruits could then be found in the lands described in the complaint, alleged to be the exclusive property and in the actual possession of the plaintiffs. It is a matter not only of law but of plain common sense that a plaintiff will not and legally cannot ask for the appointment or receiver of property which he alleges to belong to him and to be actually in his possession.

RULE 57, Section 1

Case Digest | ProvRem

PRELIMINARY ATTACHMENT

K.O. Glass Construction vs. Valenzuela Facts: Antonio Pinzon filed an action to recover from Kenneth O. Glass the sum of Php37,190.00 alleged to be agreed rentals of his truck as well as the value of spare parts which were not returned upon termination of the lease. In his complaint, Pinzon asked for an attachment against the property of the defendant consisting of collectibles and payables with the Phil. Geothermal, Inc., (PGI) on the grounds that:

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Shelu attachment upon the ground that Abapo the affidavit filed in support of the motion for preliminary attachment was not sufficient or wanting in law for reason that: a. The affidavit did not state the amount of the plaintiff’s claim was above all legal setoffs or counterclaims as required by Sec. 3, Rule 57 of the ROC b. The affidavit did not state that there is no other sufficient security for the claim sought to be recovered by the action as also required by Section 3 c. The affidavit did not specify any of the ground enumerated in Sec. 1 of Rule 57

a. Defendant is a foreigner b. That he has sufficient cause of action; and c. That there is no sufficient security for his claim against the defendant in the event a judgment is rendered in his favor

CFI judge denied the defendant’s motion and ordered PGI to deliver and deposit with the COC the amount.

CFI: Ordered for the issuance of the writ of attachment

Issue: WON the issuance of the WOPA is proper.

Kenneth Glass moved to quash the writ of attachment on the grounds that there is no cause of action against him as the transactions of the plaintiff were entered into by and between the plaintiff and K.O. Glass Construction Co., Inc..

Held:

Glass and K.O. Glass filed a motion to discharge the writ of preliminary

Sec. 1. Grounds upon which attachment may issue. —A plaintiff

There was no ground issuance of the WOPA.

for

the

Section 1, Rule 57 of the ROC, enumerates the grounds for the issuance of a WOPA:

RULE 57, Section 1

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or any proper party may, at the commencement of the action or at any time thereafter, have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases: (a) In an action for the recovery of money or damages on a cause of action arising from contract, express or implied, against a party who is about to depart from the Philippines with intent to defraud his creditor; (b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; (c) In an action to recover the possession of personal property unjustly detained, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an officer; (d) In an action against the party who has been guilty of a fraud in contracting the debt or incurring

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Shelu the obligation upon which the Abapo action is brought, or in concealing or disposing of the property for the taking, detention or conversion of which the action is brought; (e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; (f) In an action against a party who resides out of the Philippines, or on whom summons may be served by publication. Based on the foregoing, Pinzon did not allege that the defendant Kenneth O. Glass is a foreigner who may, at any time, depart from the Philippines with intent to defraud his creditors including the plaintiff. He merely stated the Mr. Glass is a foreigner. There being no showing, much less an allegation that the defendants are about to depart from the Philippines with intent to defraud their creditor, or that they are nonresident aliens, the attachment of their properties is not justified. General vs. De Venecia Facts: This is a petition for certiorari to annul the order of the lower court denying the motion to dismiss the complaint filed by Ruedas against General.

RULE 57, Section 1

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The plaintiff prayed for preliminary attachment of the defendant’s property upon the allegation that the latter was about to dispose his assets to defraud his creditors. Two days later, the writ of attachment was issued upon the filing of a suitable bond. General submitted a motion praying for the dismissal of the complaint and dissolution of the attachment. He claimed it was premature in view of the debt moratorium of the President of RP. It was denied, prompting for the institution of the special civil action. Issue: WON it was proper for the court to issue the writ of attachment in view of the debt moratorium. Held: No. SC held that no court may proceed to hear a complaint that seeks to compel payment of monetary obligation coming within the purview of the moratorium. And the issuance of a writ or attachment upon such complaint may not, of course, be allowed. Such levy is necessarily one step in the enforcement of the obligation, enforcement of which, as stated in the order, in suspended

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Shelu temporarily, pending action by the Abapo Government. But the PM signed by the petitioner provides that he promised to pay Php 4,000 within 6 months after peace has been declared. As of the time the case was heard, there was yet any peace treaty drafted between the US and Japan. It is obvious that the 6-month period has not begun, and that the debt of General is not yet demandable. General Rule provides that, unless the stature expressly so provides, the remedy by attachment is not available in respect to a demand which is not due and payable, and if an attachment is issued upon such a demand without statutory authority is void. Inasmuch as the commitment of General has not as yet become demandable, there existed no cause of action against him, and the complaint should have been dismissed and the attachment lifted. Mialhe vs. De Lencquesaing Facts: The petition is an appeal by certiorari from the decision of the IAC which declared null and void the order of Judge Barbers in case filed by the Miailhe’s granting petitioner’s application for the

RULE 57, Section 1

Case Digest | ProvRem

PRELIMINARY ATTACHMENT

issuance of a WOPA; and the denial of the motion to lift the said attachment. William Miailhe and his sisters and mother Mme. Victoria de Miailhe are co-owners of several registered real properties. By common consent of the co-owners, William has been administering the properties since 1960. Unable to secure an out-of-court partition due to the unwillingness of Elaine Mailhe de Lenquesaing, the other co-owners filed in the CFI an action for partition. While the account of William as administrator was still being examined, Elaine filed a motion praying that the sum of P203,167.36, which allegedly appeared as cash balance in her favor, be ordered delivered to her by petitioner William Mialhe. Against the opposition of the coowners, Judge Pedro Ramirez granted the motion which is now subject of a certiorari proceeding in the IAC. Meanwhile, Elaine filed a criminal complaint for estafa against William Alain, alleging that the latter had misappropriated considerable amounts by his administration which should have been turned over to her as share in the net rentals.

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Shelu William Alain then filed a complaint Abapo for Damages

verified against Elaine amounting to P2 M and attorney’s fees of P250,000 sustained by him by reason of the estafa case allegedly intended to embarrass him, besmirching his reputation as the Honorary Consul of the French Republic in the City of Bordeaux, France. The petitioner also prayed for the issuance of a writ of preliminary attachment (WOPA) of the properties of the respondent consisting of the 1/6 undivided interest in certain real properties in Manila on the ground that Elaine is a non-resident of the Philippines, pursuant to Section 1(f), Rule 57 in relation to Section 17, Rule 14 of the RROC. Judge Barbers granted the application for preliminary attachment upon the filing of bond by the petitioner in the amount of P2M. Respondent filed a motion to lift the writ of attachment on the ground that the complaint did not comply with the provisions of Sec. 3 of Rule 57 of thee ROC and that the petitioner’s claim was for unliquidated damages. The motion to lift was denied, respondent filed with the IAC a special action for certiorari alleging that Judge Barbers acted with GAD.

RULE 57, Section 1

Case Digest | ProvRem

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IAC issued a decision declaring the WOPA null and void. Petitioner filed a MFR but was denied, hence, the petition on appeal by certiorari before the SC. Issue: WON the IAC erred in construing that Sec. 1(f), Rule 57 of the ROC is applicable only in case of claim for liquidated damaes. Held: Yes. The SC agreed with the IAC. Section 1(f), Rule 57 of the ROC provides: f. In an action against a party who resides out of the Philippines, or on whom summons may be served by publication. While it is true that from the aforequoted attachment may issue “in an action against a party who resides out of the Philippines,” irrespective of the nature of the action or suit, and while it is true that in the case of Cu Unjieng vs. Albert, it was held that each of the 6 grounds teated ante is independent of the others, still it is imperative that the amount sought be liquidated. 43w2 Insular Savings Bank vs. CA Facts: This is a petition for review on certiorari under Rule 45 of the ROC

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Shelu where Insular Savings Bank seeks Abapo to set aside the CA decision denying the petitioners MFR. The CA decision cleared the RTC from alleged GAD in denying Insular’s motion to discharge attachment by counter-bond. Far East Bank and Trust Co. (FEBTC) instituted against Insular Savings Bank (ISB) before the Arbritration Committee of the Philippine Clearing House Corporation (PCHC). The dispute involved 3 checks with a total value of Php25,200,000. The checks were drawn against FEBTC and were presented by ISC for clearing. FETBC returned the checks beyond the reglementary period, but after ISB’s account with PCHC was credited with the amount. ISB refused to refund the money to FETB. While the dispute is pending arbitration, FEBTC instituted a civil case in the RTC Makati and prayed for the issuance of a WOPA. The RTC granted the application for preliminary attachment upon posting by FEBTC of an attachment bond for P6M. During the hearing before the Arbitration Committee of the PCHC, the parties agreed to temporarily

RULE 57, Section 1

Case Digest | ProvRem

PRELIMINARY ATTACHMENT

divide the disputed amount while the dispute is pending resolution. ISB then filed a motion to discharge attachment by counter-bond in the amount of P12.6M. Respondent Judge Omar Amin issued the assailed order denying the motion. ISB filed a MFR which was denied . ISB then went to the CA on a petition on certiorari ascribing the RTC the commission of grave abuse of discretion amounting to lack of jurisdiction (GADALJ). CA: While the Judge erred in arriving the amount of the counterbond, having erroneously factored in unliquidated claim items, the CS denied nonetheless the petition. According to the CA, the RTC’s order may be defended by the provision of Sec. 12 of Rule 57 of the ROC. And assuming that the RTC erred on the matter of computing the amount of the discharging the counter-bond, its error does not amount to GAD. Issue: WON the CA erred in not ruling that the RTC committed GAD in denying the petitioner’s motion to discharge attachment by counter-bond amounting to Php12.6M. Held: The RTC on its order issued:

Shelu The counter-bond posted Abapo should include:

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by ISC

a. The unsecured portion of respondent’s claim of P12.6M as agreed by means of arbitration; b. Actual damages at 25% per annum of unsecured amount of claim in the amount of P7,827,500 c. Legal Interest of 12% per annum in the amount of P3,805,200 d. Exemplary Damages in the amount of P2M; and e. Attorney’s Fees and expenses of litigation in the amount of P1M f. TOTAL: P27,237,700 ISB argues that the starting point in computing the amount of counterbond is the amount of the respondent’s demand or claim only, in this case P25,200,000, excluding contingent expenses and unliquidated amount of damages. And since there was a mutual agreement between the parties to temporarily, but equally divide between themselves the amount subject of the final outcome of the arbitration, the amount of P12.6M should be the basis for computing the amount of the counter-bond. SC agreed with and ruled in favor of ISB.

RULE 57, Section 1

Case Digest | ProvRem

PRELIMINARY ATTACHMENT

Rule 57, Section 12 provides: XXX in an amount equal to the value of the property attached as determined by the judge, to secure the payment of any judgment that the attaching creditor may recover in the action. XXX As noted, the amount of the counter-attachment bond is, under the terms of the aforequoted Section 12, to be measured against the value of the attached property, as determined by the judge to secure the payment of any judgment that the attaching creditor may recover in the action. Although not explicitly stated in the same section and without necessarily diminishing the sound discretion of the issuing judge on matters of bond approval, there can be no serious objection, in turn, to the proposition that the attached property - and logically the counter-bond necessary to discharge the lien on such property – should as much possible correspond in value to, or approximately match the attaching creditor’s principal claim. Else, excessive attachment, which ought to be avoided at all times, shall ensue. In the case at bar, records show that:

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Shelu a. The principal claim of FEBTC Abaporepresenting is P25,200,000 b.

c.

d.

e.

f.

3 unfunded checks presented for clearing Jurisprudence teaches that a writ of attachment cannot be issued for moral and exemplary damages and other liquidated or contingent claim The order of attachment fixed the bond to be posted by FEBTC as P6M. The writ of attachment indicated that ISB is justly indebted to FEBTC in the amount of P25.2M. But before the Arbitration Committee of PCHC, the parties agreed to equally divide between themselves on a temporary basis the disputed amount, thus ISB released P12.6M to FEBTC ISB filed a motion to discharge attachment by counter-bond in the amount of P12.6M which to ISB is the extant that FEBTC may actually be prejudiced in the event its basic complaint for recovery of money against ISB prospers

The RTC should have allowed a total discharge of the attachment on a counter-bond based on the reduced claim of respondent. If a portion of the claim is already secured, the SC sees no justifiable

RULE 57, Section 1

Case Digest | ProvRem

PRELIMINARY ATTACHMENT

reason why such portion still be subject of counter-bond. It may be that a counter-bond is intended to secure payment of any judgment that the attaching party (FEBTC) may recover in the main action. Simple common sense, if not consideration of fair play, however, dictates that a part of a possible judgment that has veritably been preemptively satisfied or secured need not be covered by counter-bond. The trial court, therefore, committed GAD when it denied petitioner’s motion to discharge attachment by counter-bond in the amount of P12.6M, an amount more than double the attachment bond required of, and given by, respondent. As necessary consequence, the CA committed reversible error when it dismissed ISB’s recourse. The case at bar and its proceedings transpired under the old rules on preliminary attachment which has been revised. Unlike the former Sec. 12, Rule 57 where the value of the property attached shall be the defining measure in the computation of the discharging counter-attachment bond, the present less-stringent Section 12, Rule 57 provides that the court shall order the discharge of attachment if the movant “makes a cash deposit or files a counter-

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Shelu bond…in an amount equal to that Abapo fixed by the court in the order of attachment, exclusive of costs.” Not being in the nature of a penal statute, the ROC cannot be given retroactive effect. Isidro Tan vs. Francisco Zandueta Facts: Isidro Tan alias Tan Lit is confined in Bilibid Prison prays for his release alleging that he is deprived of his liberty by virtue of an illegal order entered by the CFI Manila by Judge Zandueta. The court found Tan in contempt of court, and ordered that, pending the deposit by him of P12,000 or filing a bond in the said amount, he will not be released. Prior to this, respondent Tiu Chay alian Tan Kia obtained a writ of preliminary attachment against Isidro Tan upon the filing of bond in the amount of P5,000. The respondent judge issued said writ, authorizing the attachment of the properties of Isidro Tan to the amount of P22,500. Upon motion of Tan, the judge issued an order lifting the writ of attachment conditioned on the filing of a counter-bond in the amount of P5,000.

RULE 57, Section 1

Case Digest | ProvRem

PRELIMINARY ATTACHMENT

Isidro Tan then withdrew the amount deposited in PNB which has been attached under the court issued writ. Tiu Chay then asked the court that Isidro Tan be required to put up another counterbond in the amount of P22,500 instead of the P5,000 already filed. The court ordered to Tan to file an additional counter-bond in the amount of P10,000, giving him 10 days to do so. Four days later, Judge Zandueat entered another order requiring Tan to put up a counter-bond of P17,000 instead of P15,000, or in default, deposit anew in the PNB P17,000 of the amount withdrawn by him. For failure to file the bond, the court ordered Tan to show cause why he should not be punished for contempt of court. The court granted Tan another day to comply and reduced the counter-bond required of him to P12,000. As Tan neither filed any additional counter-bond nor made the deposit required by him, the respondent judge ordered his arrest and was sent to jail there to remain until he should deposit the amount required of him or file the counter-bond. Tan argues that under Section 440 of Act 190, after filing the counterbond of P5,000 required of him by the court, he was authorized and

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Shelu had a perfect right to withdraw Abapo from the PNB the amount of his deposit which was attached by virtue of the court order. That when he withdrew the said amount, there was still no order preventing or restraining him from doing so, and requiring him to file an additional counter-bond, because the order imposed upon him that obligation was issued very much later, or twelve days after the said withdrawal. A reading of the aforesaid section of law readily shows, that when the property released from an attachment cannot be returned by the party who secured its release upon filing of a bond, the bond takes the place of said property, that is, answers therefore, because the law on the points is couched in the following language: “the obligation aforesaid standing in place of the property so released.” Respondent’s contention that the judge proceeded according to law in requiring an additional counterbond of P12,000 and in later ordering the confinement of the petitioner pending the filing of said bond or the deposit of an equal amount with the bank, because he had not lost jurisdiction over the property released pursuant to the provisions of Section 440 of Act No.

Case Digest | ProvRem

RULE 57, Section 1

PRELIMINARY ATTACHMENT

90, is not only without merit but also untenable. From the moment the said respondent authorized Isidro Tan to put up the counter-bond of P5,000 and from the moment that he filed the said counter-bond in order to be able to withdraw his deposit in the PNB, it can be said that the respondent lost jurisdiction over the said property, although he retained jurisdiction to resolve the principal question whether or not Tiu Chay was entitled to the relief prayed for in his complaint, because he permitted and the law permits that the counter bond of the petitioner stand and answer for the property. SC held that Tan is in fact deprived of his liberty by virtue of an illegal order. The Court ordered for his immediate release. Walter E. Olsen Walter E. Olsen

&

Co.

vs.

Facts: This is an appeal taken by Walter Olsen from a judgment of the CFI Manila sentencing him to pay plaintiff corporation the sum of P66,207.62 with legal interest of 6% per annum from the date of filing of the complaint until full payment and the costs, and dismissing the cross-claimant and counterclaim set up by him.

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Shelu Issue: WON an order denying Abapo motion for annulment of preliminary attachment may reviewed through an appeal.

a a be

Held: The preliminary attachment is anauxiliary remedy the granting of which lies within the sound discretion of the judge taking cognizance of the principal case upon whose existence it depends. The order of the judge denying a motion for the annulment of a writ of preliminary attachment, being of an incidental or interlocutory and auxiliary in character, cannot be the subject of an appeal independently from the principal case, because our procedural law now in force authorizes an appeal only from a final judgment which gives an end to the litigation. This lack of ordinary remedy through an appeal does not mean, however, that any excess a lower court may commit in the exercise of its jurisdiction is without remedy; because there are special remedies such as certiorari, for the purpose. While it is true that an order denying a motion for the annulment of a preliminary attachment is not subject to review through an appeal independently from the principal case, it not consisting a final order, yet when

RULE 57, Section 1

Case Digest | ProvRem

PRELIMINARY ATTACHMENT

the writ of preliminary attachment becomes final by virtue of a final judgment rendered in the principal case, the said writ is subject to review jointly with the judgment rendered in the principal case through an ordinary appeal. The appellate court has the power to revoke or confirm said order, in like manner as a judgment on the merits, because it is a ruling to which an exception may be taken, and therefore is subject to review in an appeal by bill of exceptions. The fact that Section 441 of the Code of Civil Procedure does not provide any remedy against the granting or denial of a motion for the annulment of a writ of preliminary attachment, except in case of excess jurisdiction, does not confer upon said order a final and irrevocable character, taking it out from the general provisions as to appeal and review, for a special provision is necessary for that purpose. The SC arrived at the conclusion that an order denying a motion for the annulment of a preliminary attachment may be reviewed in an appeal taken from a final judgment rendered in the principal case, in which order was entered as an auxiliary remedy. Santos vs. Bernabe & Tiongson

Facts:

Shelu Abapo

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This appeal was taken by Pablo Tiongson and the Provincial Sheriff of Bulacan from the judgment of the CFI where Tiongson was ordered to pay Urbano Santos the value of 778 cavans and 38 kilos of palay, at the rate of P3/cavan. On March 20, 1928, Urbano Santos deposited in Jose Bernabe’s warehouse 778 cavans of palay and 38 kilos of palay. Pablo Tiongson had deposited in the same warehouse 1,026 cavans and 9 kilos of palay. On the said date, Tiongson filed with the CFI of Bulacan a complaint against Bernabe to recover from the latter the deposited palay. At the same time, the application of Tiongson for a writ of attachment was granted, and the attachable property of Bernabe including 924 cavans and 31 ½ kilos of palay found by the sheriff in his warehouse were attached, sold at a public auction, and the proceeds were delivered to Tiongson, who obtained judgment is the said case. Urbano Santos intervened, in the attachment of the palay, but upon Pablo Tiongson’s filing the proper bond, the sheriff proceeded with the attachment, giving rise to the present complaint.

RULE 57, Section 1

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The palays deposited bore no marking, nor were they separated from one another. Santos contends that Tiongson cannot claim the 924 cavans and 31 ½ kilos of playa attached by the defendant sheriff as part of those deposited by him in Bernabe’s warehouse, because, in asking for the attachment, he impliedly acknowledged that it belonged to Bernabe and not to him. The 778 cavans and 38 kilos of palay belonging to the plaintiff Urbano Santos, having been mixed with the 1,026 cavans and 9 kilos of palay belonging to Tiongson in Bernabe’s warehouse, the sheriff having found only 924 cavans and 31 ½ kilos of palay in the said warehouse at the time of attachment; and there being no means of separating from the cavans of palay that belonging to Santos and those belonging to

Shelu Tiongson, Article 381 of Abapo Code is applicable:

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the Civil

Article 381. If, by the will of the owners, two things of identical or dissimilar nature are mixed, or if the mixture occurs accidentally, if in the latter case the things cannot be separated without injury, each owner shall acquire a right in the mixture proportionate to the part belonging to him, according to the value of the things mixed or commingled. The number of kilos in a cavan not having been determined, we will take the proportion only of the 924 cavans of palay which were attached and sold, thereby giving Santos 398.49 and Tiongson 525.51 cavans, or the value thereof at the rate of P3 per cavan. State Investment House, Inc. vs. CA Facts: