GR 45720; (December, 1937) (Digest)
G.R. No. 45720 , December 29, 1937
VENTURA GUZMAN, petitioner, vs. ALFREDO CATOLICO and SIMEON RAMOS, Judge of First Instance of Isabela, respondents.
FACTS
Respondent Alfredo Catolico filed a complaint against petitioner Ventura Guzman in the Court of First Instance of Isabela to recover attorney’s fees. Catolico simultaneously applied for a writ of preliminary attachment, alleging Guzman was trying to sell his properties to defraud creditors. The supporting affidavit stated the allegations in the complaint were “certain and true, to the best of my knowledge and belief.” The respondent judge granted the writ. Guzman moved to cancel it, arguing the affidavit failed to allege: (1) there was no other sufficient security for the claim, and (2) the amount due was above all legal set-offs or counterclaims. The motion was denied.
ISSUE
Whether the writ of preliminary attachment was validly issued despite the affidavit’s failure to allege the specific statutory requisites under Section 426 of the Code of Civil Procedure.
RULING
No. The writ is null and void. The law on preliminary attachment must be construed strictly. Section 426 of the Code of Civil Procedure requires the affidavit to show, among other things, that “there is no other sufficient security for the claim” and “that the amount due to the plaintiff above all legal set-offs or counterclaims is as much as the sum for which the order is granted.” The affidavit here omitted these essential allegations. Compliance with these statutory requisites is jurisdictional. A judge who issues a writ without such compliance acts in excess of jurisdiction. The affidavit was not saved by its “knowledge and belief” clause, as the defect was the omission of required factual assertions, not the basis of belief. The writ of certiorari is granted, and the preliminary attachment is declared null and void.
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