G.R. No.

84034 December 22, 1988

ALBERTO SIEVERT, petitioner,
vs.
COURT OF APPEALS, HON. JUDGE ARTEMON D. LUNA and AURELIO
CAMPOSANO, respondents.

King & Adorio Law Offices for petitioner.

Moises C. Kallos for private respondent.

FELICIANO, J.:

On 18 May 1988 petitioner Alberto Sievert a citizen and resident of the Philippines received by mail a Petition for Issuance of a Preliminary
Attachment filed with the Regional Trial Court of Manila Branch 32 in Civil Case No. 88-44346. Petitioner had not previously received any
summons and any copy of a complaint against him in Civil Case No. 88-44346.

On the day set for hearing of the Petition for a Preliminary Writ of Attachment, petitioner's counsel
went before the trial court and entered a special appearance for the limited purpose of objecting to
the jurisdiction of the court. He simultaneously filed a written objection to the jurisdiction of the trial
court to hear or act upon the Petition for Issuance of a Preliminary Writ of Attachment. In this written
objection, petitioner prayed for denial of that Petition for lack of jurisdiction over the person of the
petitioner (defendant therein) upon the ground that since no summons had been served upon him in
the main case, no jurisdiction over the person of the petitioner had been acquired by the trial court.

The trial court denied the petitioner's objection and issued in open court an order which, in relevant
part, read as follows:

Under Section 1, Rule 57, Rules of Court, it is clear that a plaintiff or any proper party
may "... at the commencement of the action or at any time thereafter, have the
property of the adverse party attached as the security for the satisfaction of any
judgment ..." This rule would overrule the contention that this Court has no
jurisdiction to act on the application, although if counsel for defendant so desire, she
is given five (5) days from today within which to submit her further position why the
writ should not be issued, upon the receipt of which or expiration of the period, the
pending incident shall be considered submitted for resolution. (Underscoring in the
original)  1

Thereupon, on the same day, petitioner filed a Petition for certiorari with the Court of Appeals. On 13
July 1988, the respondent appellate court rendered a decision, notable principally for its brevity,
dismissing the Petition. The relevant portion of the Court of Appeals' decision is quoted below:

The grounds raised in this petition state that the court a quo had not acquired
jurisdiction over defendant (now petitioner) since no summons had been served on
him, and that respondent Judge had committed a grave abuse of discretion in issuing
the questioned order without jurisdiction.

In short, the issue presented to us is whether respondent Judge may issue a writ of

Under Sec. 1, Rule 57, it is clear that, at the commencement of the action, a party
may have the property of the adverse party attached as security. The resolution of
this issue depends, therefore, on what is meant by "Commencement of the action."
Moran, citing American jurisprudence on this point, stated thus: "Commencement of
action. — Action is commenced by filing of the complaint, even though summons is
not issued until a later date." (Comment on the Rules of Court, Vol. I, p. 150, 1979).
Thus, a writ of preliminary attachment may issue upon filing of the complaint even
before issuance of the summons.

WHEREFORE, for lack of merit, the petition is hereby denied and, accordingly,
dismissed. (Emphasis supplied)  2

The petitioner is now before this Court on a Petition for Review on Certiorari, assailing the above-
quoted decision of the Court of Appeals. The petitioner assigns two (2) errors:

1. The proceedings taken and the order issued on plaintiffs petition for attachment
prior to the service of summons on the defendant were contrary to law and
jurisprudence and violated the defendant's right to due process.

2. The Court of Appeals committed a grave abuse of discretion amounting to lack of

The two (2) assignments of error relate to the single issue which we perceive to be at stake here,
that is, whether a court which has not acquired jurisdiction over the person of the defendant in the
main case, may bind such defendant or his property by issuing a writ of preliminary attachment.

Both the trial court and the Court of Appeals held that the defendant may be bound by a writ of
preliminary attachment even before summons together with a copy of the complaint in the main case
has been validly served upon him.

We are unable to agree with the respondent courts.

There is no question that a writ of preliminary attachment may be applied for a plaintiff "at
the commencement of the action or at any time thereafter" in the cases enumerated in Section 1 of
Rule 57 of the Revised Rules of Court. The issue posed in this case, however, is not to be resolved
by determining when an action may be regarded as having been commenced, a point in time which,
in any case, is not necessarily fixed and Identical regardless of the specific purpose for which the
deter. nation is to be made. The critical time which must be Identified is, rather, when the trial court
acquires authority under law to act coercively against the defendant or his property in a proceeding
in attachment. We believe and so hold that critical time is the time of the vesting of jurisdiction in the
court over the person of the defendant in the main case.

Attachment is an ancillary remedy. It is not sought for its own sake but rather to enable the
attaching party to realize upon relief sought and expected to be granted in the main or
principal action .   A court which has not acquired jurisdiction over the person of defendant,
4

cannot bind that defendant whether in the main case or in any ancillary proceeding such
as attachment proceedings. The service of a petition for preliminary attachment without the
prior or simultaneous service of summons and a copy of the complaint in the main case —
 and that is what happened in this case — does not of course confer jurisdiction upon the
issuing court over the person of the defendant.

Ordinarily, the prayer in a petition for a writ of preliminary attachment is embodied or incorporated in
the main complaint itself as one of the forms of relief sought in such complaint. Thus, valid service of
summons and a copy of the complaint will in such case vest jurisdiction in the court over the
defendant both for purposes of the main case and for purposes of the ancillary remedy of
attachment. In such case, notice of the main case is at the same time notice of the auxiliary
proceeding in attachment. Where, however, the petition for a writ of preliminary attachment is
embodied in a discrete pleading, such petition must be served either simultaneously with service of
summons and a copy of the main complaint, or after jurisdiction over the defendant has already
been acquired by such service of summons. Notice of the separate attachment petition is not notice
of the main action. Put a little differently, jurisdiction whether ratione personae or ratione materiae in
an attachment proceeding is ancillary to jurisdiction ratione personae or ratione materiae in the main
action against the defendant. If a court has no jurisdiction over the subject matter or over the person
of the defendant in the principal action, it simply has no jurisdiction to issue a writ of preliminary
attachment against the defendant or his property.

It is basic that the requirements of the Rules of Court for issuance of preliminary attachment must be
strictly and faithfully complied with in view of the nature of this provisional remedy. In Salas v.
Adil,   this Court described preliminary attachment as —
5

a rigorous remedy which exposes the debtor to humiliation and annoyance, such
[that] it should not be abused as to cause unnecessary prejudice. It is, therefore; the
duty of the court, before issuing the writ, to ensure that all the requisites of the law
have been complied with; otherwise the judge acts in excess of his jurisdiction and
the writ so issued shall be null and void. (Emphasis supplied ) 6

The above words apply with greater force in respect of that most fundamental of requisites, the
jurisdiction of the court issuing attachment over the person of the defendant.

In the case at bar, the want of jurisdiction of the trial court to proceed in the main case against the
defendant is quite clear. It is not disputed that neither service of summons with a copy of the
complaint nor voluntary appearance of petitioner Sievert was had in this case. Yet, the trial court
proceeded to hear the petition for issuance of the writ. This is reversible error and must be corrected
on certiorari.

WHEREFORE, the Petition for Review on certiorari is GRANTED due course and the Order of the
trial court dated 20 May 1988 and the Decision of the Court of Appeals dated 13 July 1988 are
hereby SET ASIDE and ANNULLED. No pronouncement as to costs.

SO ORDERED.