G.R. No. 46180 ; August 30, 1938
ANACLETO R. TOLENTINO, petitioner, vs. JOSE R. CARLOS, Judge of First Instance of Benguet, Mountain Province, and COMMONWEALTH OF THE PHILIPPINES, respondents.

FACTS

The petitioner, Anacleto R. Tolentino, was the postmaster of Baguio. An information was filed against him for malversation of public funds and postage stamps. The following day, the Commonwealth filed a separate civil case to recover the same funds and stamps and obtained a writ of preliminary attachment against his property. Tolentino filed a petition for certiorari to annul the writ, arguing that: (1) the supporting affidavit was defective; (2) the Commonwealth failed to post an attachment bond; (3) the civil action, arising from the same act as the criminal case, could not be prosecuted simultaneously under Article 114 of the Spanish Law of Criminal Procedure; and (4) the judge acted without or in excess of jurisdiction.

ISSUE

Whether the writ of preliminary attachment issued in the civil case is valid.

RULING

Yes, the writ of attachment is valid.
(1) The verified statement of the city auditor at the end of the complaint, affirming the truth of its allegations, constituted a sufficient affidavit for attachment under the Code of Civil Procedure.
(2) The Commonwealth, as the plaintiff, was exempt from posting an attachment bond based on the principle of state solvency.
(3) The civil action for the recovery of misappropriated public funds is an action ex contractu (arising from the petitioner’s duty as a public officer to account for and return government property), not an action ex delicto (arising from the crime itself). Therefore, Article 114, which suspends a civil action arising from the same criminal act, does not apply. The civil action can proceed independently of the criminal case.
(4) The respondent judge acted within his jurisdiction in issuing the writ. The petition for certiorari was dismissed.

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