G.R. No. L-17797. November 29, 1963.
ISABELO CARPIO, petitioner, vs. HON. HIGINIO MACADAEG, as presiding Judge of Branch X, Court of First Instance of Manila; OSCAR C. ABAYA, Provincial Sheriff of Rizal and City Sheriff of Manila, respondents.

FACTS

Respondent Oscar Abaya filed a complaint for sum of money against petitioner Isabelo Carpio. Before summons was served, Abaya filed an ex parte motion for a writ of preliminary attachment, alleging Carpio was about to dispose of his property, leaving no security for a potential judgment. Respondent Judge Higinio Macadaeg issued two orders of attachment in February 1960, leading to the garnishment of Carpio’s hardware goods and the seizure of his five race horses. Carpio moved to discharge the attachments. In March 1960, the judge granted this motion and set aside the attachment orders. However, upon Abaya’s motions for reconsideration, the judge reversed himself and reinstated the attachments via an order dated March 29, 1960, without a new petition or affidavit for attachment. Based on this reinstated attachment, the judge later issued orders in October and November 1960 directing the sale of the attached horses and goods, prompting Carpio to file this petition for certiorari and prohibition.

ISSUE

Whether the respondent judge acted without jurisdiction or with grave abuse of discretion in issuing the orders for preliminary attachment and the subsequent orders for the sale of the attached properties.

RULING

Yes. The Supreme Court annulled the orders. The legal logic proceeds from a strict application of the rules on preliminary attachment under Rule 59 of the Rules of Court. First, the initial writs of attachment were improperly issued. The ground invoked was that the defendant was “about to dispose of his property.” However, Section 1(e) of Rule 59 requires that such removal or disposal be made “with intent to defraud his creditors.” A mere allegation of disposal, without the requisite fraudulent intent, is legally insufficient. Second, and more critically, the reinstatement of the attachment via the order of March 29, 1960 was void for lack of a supporting affidavit. Section 3 of Rule 59 mandates that an order of attachment shall be granted only upon a compliant affidavit filed by the plaintiff. The affidavit originally submitted with the ex parte motion was deficient for not alleging fraudulent intent. No new or amended affidavit was ever filed by Abaya when he sought reconsideration to reinstate the attachment. Therefore, the judge had no legal basis to issue the March 29 order. All subsequent orders, including those directing the sale of the properties, which were predicated on that invalid attachment, were consequently null and void. The Court made permanent the preliminary injunction and ordered the release of all attached properties.