G.R. No. 48080 ; August 31, 1942
JOSE DE BORJA, petitioner, vs. SERVILLANO PLATON and FRANCISCO DE BORJA, respondents.

FACTS

Petitioner Jose de Borja seeks to annul an order of preliminary attachment issued by respondent Judge Servillano Platon against his properties on November 6, 1940, and reiterated on January 13, 1941. The attachment arose from a civil case originally filed by Jose de Borja on August 12, 1936, against Hermogena Romero, Francisco de Borja, Josefa Tangco, and Crisanto de Borja to annul a sale of the Hacienda Jalajala and recover damages. Defendants Francisco de Borja and Josefa Tangco (his parents) filed an answer with counterclaims, later amended on August 4, 1937, to include five counterclaims and cross-complaints. They alleged that Jose de Borja, as administrator of their interests, had been unfaithful and misappropriated funds, praying for, among other things, an accounting and payment of various sums totaling at least P869,000 (including P100,000, P700,000, P20,000, P9,034, and P40,000). On July 27, 1940, Francisco de Borja and his wife filed a petition for preliminary attachment covering their third, fourth, and fifth cross-complaints, totaling P69,035, stating they did not include the larger claims because Jose de Borja’s attachable property was only worth about P2,000. Jose de Borja later filed an amended answer on August 21, 1940, setting up a counterclaim against Francisco de Borja and wife for P99,175.46.

ISSUE

1. Whether a writ of preliminary attachment can be issued in favor of a defendant who presents a counterclaim.
2. Whether the affidavit supporting the petition for attachment was fatally defective for failing to allege that “the amount due to the plaintiff is as much as the sum for which the order is granted above all legal counterclaims,” as required by law.

RULING

1. Yes, a writ of preliminary attachment may be issued in favor of a defendant who sets up a counterclaim. The Court held that for the purpose of attachment protection, it is immaterial whether the defendants presented a counterclaim or filed a separate civil action. Drawing a distinction would sanction technicalities contrary to modern procedural laws aimed at speedy and substantial justice. The trial court’s issuance of the attachment was within its discretion, and no grave abuse of discretion was found.
2. No, the affidavit was not fatally defective. The trial court found that the aggregate counterclaims of Francisco de Borja and wife (P869,000) exceeded Jose de Borja’s counterclaim (P99,175.46) by about P769,000. The Court presumed that the lower court, having evidence from a trial that began four years prior, ordered the attachment based on that evidence. Thus, the omission of the specific allegation did not render the affidavit defective under the circumstances.
The order of preliminary attachment is affirmed, with costs against petitioner Jose de Borja.