PROVREM.docx - D.P LUB OIL V NICOLAS FACTS D.P Lub Oil Marketing Center Inc filed a case against private respondents Raul Nicolas and Socorro Valerie

PROVREM.docx - D.P LUB OIL V NICOLAS FACTS D.P Lub Oil...

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D.P. LUB OIL V NICOLAS FACTS : D.P. Lub Oil Marketing Center, Inc. filed a case against private respondents Raul Nicolas and Socorro Valerie Gutierrez for a sum of money and damages. The complaint contained a prayer for the issuance of a writ of preliminary attachment upon the ground that the claim resulted from the non-payment of the purchase price of fuel oil used for the ten vessels of the private respondents-defendants 3 and that pursuant to the provisions of the Code of Commerce, the said vessels may be attached. A writ of preliminary attachment was issued ex parte by a court. Armed with the writ, the Sheriff boarded the private respondents’ fishing vessel, "Star Vangeline," and placed it under custodia legis. Next day, respondent judge lifting the attachment upon the posting of a counterbond. Private respondents filed a "Motion to Withdraw Counter-bond and to Dissolve Writ of Attachment. Despite opposition from the petitioner, the respondent Judge issued the first of the disputed orders which dissolved the writ of attachment and allowed the private respondents’ withdrawal of their counterbond. ISSUE : W/N PETITIONER ENTITLED TO A WRIT OF PRELIMINARY ATTACHMENT IN THE FIRST PLACE? RULING : No. The rules on the issuance of a writ of attachment must be construed strictly against the applicants. This stringency is required because the remedy of attachment is harsh, extraordinary, and summary in nature. If all the requisites for the granting of the writ are not present, then the court which issues it acts in excess of its jurisdiction. The petitioner’s prayer for a preliminary attachment hinges’ on the allegations in paragraph 16 of the complaint and paragraph 4 of the affidavit of Daniel Pe which are couched in general terms devoid of particulars of time, persons, and places to support such a serious assertion that "defendants are disposing of their properties in fraud of the creditors." There is thus the necessity of giving to the private respondents an opportunity to ventilate their side in a hearing, in accordance with due process, in order to determine the truthfulness of the allegations. But no hearing was afforded to the private respondents the writ having been issued ex parte. A writ of attachment can only be granted on concrete and specific grounds and not on general averments merely quoting the words of the rules. DAVAO LIGHT VS CA FACTS : Davao Light) filed a verified complaint for recovery of a sum of money and damages against Queensland Hotel, etc. and Teodorico Adarna, it contained an ex parte application for a writ of preliminary attachment. Defendants Queensland and Adarna filed a motion to discharge the attachment for lack of jurisdiction to issue the same because at the time the order of attachment was promulgated and the attachment writ issued, the Trial Court had not yet acquired jurisdiction over the cause and over the persons of the defendants. CA decision nullified and set aside the writ of preliminary attachment issued by the Regional Trial Court of Davao City 2 in Civil Case No. 19513-89 on application of the plaintiff (Davao Light & Power Co.), before the
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  • Fall '18
  • Appellate court, Trial court, preliminary attachment

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