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[G. B. v. JUDGE CONBADO. V. SANCHEZ](https://www.lawyerly.ph/juris/view/c305b?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. L-7717, Apr 27, 1956 ]

G. B. v. JUDGE CONBADO. V. SANCHEZ +

DECISION

98 Phil. 886

[ G.R. No. L-7717, April 27, 1956 ]

G. B., INC., ETC., PETITIONER, VS. THE HONORABLE JUDGE CONBADO. V. SANCHEZ, ET AL., RESPONDENTS.

D E C I S I O N

PARAS, C.J.:

Petitioner herein, G. B.  Inc., is the  trustee  of Juan Luna Subdivision,  Inc.  Allison Gibbs is the  President of the petitioner and Manager of  Juan Luna Subdivision, Inc.  Before December 31, 1953, herein  respondent Juan T. Chuidian and Allison Gibbs  were partners of the  law firm "Gibbs, Gibbs,  Chuidian  and Quasha", the retainingcounsel of Juan Luna Subdivision, Inc.  On June 18, 1948, a loan of F40,000 w'as granted by Juan Luna Subdivision, Inc. to  respondent Chuidian,' and an "Agreement to Sell" was executed on that date whereby respondent Chuidian acknowledged  the receipt of  said  amount for which lie  ' agreed  and promised to transfer within  60  days to Juan Luna Subdivision, Inc. the land which he bought from one Florence Shuster with the loan thus  obtained.  On June 19, 1948; respondent Chuidian addressed a letter to Juan Luna Subdivision, Inc., indicating his intention to secure a loan from the  Rehabilitation  Finance Corporation with whicji to pay  his  debt  to  Juan  Luna  Subdivision, Inc. On llay, 5, 1953, in hia letter to Juan Luna Subdivision, Inc., respondent  Chuidian acknowledged  his  indebtedness of P53,817.72  representing balance of principal  and interest.  Instead of conveying the land bought from Florence  Shuster  to Juan  Luna  Subdivision, Inc.,  respondent Chuidian  sold  the same  to Elenita Hernandez for P25,000 in order to pay his  wife's  gambling debt. On December 1, 1953, Allison Gibbs and respondent Chuidian ceased to  be lav partners.  On March 4, 1954, the petir tioner filed  a  complaint against respondent Chuidian  in the Court of  First  Instance  of Manila, Civil Case No. 22138, for the  collection of his indebtedness based  on his "Agreement to  Sell".  At the commencement of the action, the petitioner  asked for the issuance ex parte of a writ. of preliminary attachment which was granted by the court upon the filing by the petitioner of a bond of P57.000.' On March 12, 1954, respondent Chuidian filed  a "Motion,to Discharge Attachment"  based  on the  ground that  said attachment was improperly issued, to  which  the petitioner filed an opposition, on  March  16,  1954. On March 31, 1964,  the  petitioner  filed an  urgent motion praying that respondent Chuidian's "Motion to Discharge Attachment" be  denied or  that it  be granted after  the  filing of  a counter bond or that the hearing of said "Motion to Discharge Attachment" be held  after respondent Chuidian shall have filed  an answer to the complaint.  The  respondent Judge of the Court of First Instance of  Manila  denied petitioner's  urgent  motion and  set the  hearing, of the "Motion to Discharge Attachment" on April 3, 1954.   Such hearing was held on  April  3 and  6,  1954.  When the hearing in the afternoon of April 6 and was about to end, counsel  for petitioner requested that  the latter be given a chance to present an  absent  witness, which the  court denied on ¦tjhe  ground that it  had previously warned the parties that all  witnesses should be presented on said date. On  April 23,  1954,  the respondent Judge  issued  an order granting respondent Chuidian's "Motion to Discharge Attachment" under section IS of Kule 59 of the  Rules  of Court.  A motion for reconsideration  having Been denied, the petitioner filed the present petition for certiorari with preliminary injunction.  On May 4, 1984, this Court issued the preliminary injunction prayed  for,  restraining the respondent Judge and the sheriff of the City of Manila from enforcing the order of April 22, 1945,  discharging the writ of attachment.

The grounds advanced by the petitioner for the issuance of the writ of attachment were (a) that respondent Chuidian converted to his own use the land which he bought in a  fiduciary capacity for Juan Luna Subdivision, Inc.; (b) that respondent Chuidian is guilty of fraud in contracting his indebtedness and incurring the obligations  upon which the action is  brought; and (c) that respondent Chuidian has removed or disposed of his property or is  about to do so with intent  to  defraud his creditor.  The petitioner also points out  that in addition to the grounds set forth in the  motion for the issuance of an ex parte writ of preliminary attachment,  other  grounds contained in. the allegations  of the  complaint  were made  a part of said ex parte motion by reference.  Attached to the "Motion to Discharge Attachment" filed by respondent Chuidian, was an affidavit contradicting  the grounds alleged by the petitioner.  Respondent  Chuidian herein  stresses the fact that while the writ of attachment was obtained by petitioner ex parte, its discharge was  ordered  by the respondent Judge after extended hearings and  the submission of memoranda.

Stripped  of non-essentials,  the  petitioner argues that respondent  Chuidian converted to his own  use the. land which he bought in a fiduciary capacity  for  Juan Luna Subdivision, Inc., or at least is guilty of fraud in contracting his indebtedness and incurring the obligations upon which the action in Civil Case No. 22138 is brought, reliance being placed on the  "Agreement to Sell" executed by respondent Chuidian on June 18, 1948,. and the letter  written by him to  Juan Luna Subdivision, Inc., on June 19, 1948, herein above already referred to. Respondent Chuidian in his testimony  during the  hearing of his  "Motion  to  Discharge Attachment"  alleged that said "Agreement to Sell" did not express the true intentions  of the  parties;  that all  the papers relied upon by the petitioner were mere formalities to  avoid criticisms of the minority stockholders of Juan Luna Subdivision, Inc., conceived by Allison Gibbs; that the  real and. true  intention of-the parties was  that the money would be advanced by Allison; Gibbs to respondent Chuidian  and  the former would pay the Juan Luna Subdivision, Inc.

Petitioner also alleges  that if it had been  allowed to present its  absent witness,  Efrenita  Hernandez,  the  following facts would have been proven:  (1) that Chuidian's wife's indebtedness to Elenita Hernandez  was contracted before the "Agreement to Sell"; (2) that such indebtedness has  been  outstanding for some time before such  date (June  18, 1948);  and  (3) that the "Agreement  to Sell" dated June  18, 1948 and letter on June 19, 1948, were executed  with  the preconceived intention of not complying with them.  It is therefore obvious that, in order to determine  whether or  not respondent Chuidian  converted to his  own  use  the  land which he bought  in a  fiduciary capacity  for the  Juan Luna Subdivision,  Inc.,  or  was guilty of fraud in contracting his debt and incurring the obligations upon which the action is  brought, considering that respondent Chuidian  has alleged  that the "Agreement to Sell"  executed' t>y him and other  papers relied upon by the petitioner,  did not express  the real  intentions of the parties; and considering  that the grounds invoked by the petitioner  for  the issuance of the writ of attachment form  the very basis of its  complaint in Civil  Case  No. 22138, a  trial  on the merits,  after answer shall have been filed by respondent Chuidian, was necessary.  In this  case the hearings  of  the "Motion to Discharge"  were  held before the issues have  been  joined (respondent  Chuidian not having as  yet  filed  his answer, to the  complaint),  and the order of the respondent Judge discharging the attachment would have  the effect of deciding or prejudging the main action.  "The merits of the  main  action are  not triable in a motion to discharge  an  attachment otherwise an applicant for the dissolution could force a trial of the merits of the case  on his motion."  (4  Am.  Jur.,  Sec. 635, 984.)   The petitioner's case is rather strengthened by the fact that it was not  given an opportunity to present an  absent  material witness,  in  the  person  of  Elenita Hernandez.

In holding that  there was no fraud on  the part of respondent Chuidian, the respondent Judge  held  as follows: "It must be borne in mind that-defendant did not pocket the money no money passed hands  with  that  conveyance " to Elenita Hernandez.  The conveyance was in the form of a 'dacion en page'   Defendant was practically driven to the wall, the family name must be preserved.  If defendant received actually that sum of P25.000 consideration for the conveyance, perhaps there may yet be reason for branding defendant as a fraud.  But such was not the case."  It ia evident, however, that the  fact that respondent Chuidian . did not pocket the money paid for the conveyance by Blenita Hernandez, is immaterial,  inasmuch as the petitioner was deprived of the same amount of P25,000, assuming that under  its complaint  respondent Chuidian was in  fact indebted  to  the petitioner  in  the manner stated  in  said complaint.

We are, therefore, of the opinion  that, from what has been said, and in view of the return of the sheriff showing financial  instability on the part  of  respondent Chuidian, the most  that the respondent Judge could have done in his favor to  which the  petitioner  has  expressed its  agreement was to  discharge the attachment in question upon the filing by respondent Chuidian of  a counter bond in the sum of P57.000, under section 12 of  Rule  59 of the Rules of Court.  This would have accomplished respondent Chuidian's purpose of preserving his property and family name, at the same time giving the petitioner  security for any judgment that it may obtain against him.  We are constrained to hold that the respondent Judge acted with grave abuse of discretion.

Wherefore,  the order of  the  respondent  Judge dated April  22,  1954,  is hereby set aside, and the writ of preliminary attachment issued  on March 4,  1954 maintained.

So  ordered  with costs  against  respondent  Juan  T. Chuidian.

Bengzon,  Reyes,  A., Jugo, Concepcion, Reyes,  J,  B.  L., and  Endencia, JJ., concur.

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