FLORIDO vs.SHEMBERG MARKETING CORPORATION
G.R. No. 146400
October 25, 2005
FACTS: Respondent Shemberg filed a complaint for collection of a sum of money with a plea for the issuance of a writ of preliminary attachment against Nacua. The trial court granted Shemberg’s plea and ordered the issuance of the writ.
The sheriff prepared a notice of levy on attachment over five marine vessels owned by Nacua. The sheriff then proceeded to Nacua’s house to serve the writ but learned that he had fled the country and had appointed an attorney-in-fact, Mariano. The sheriff then went to Mariano’s house and served the summons on him, in the presence of petitioner. Seeing four vessels owned by Nacua moored at the Cabahug Wharf in Looc, Mandaue City without any officers or crew, the sheriff levied on and took possession of them and made an inventory.
Petitioner Bernardito Florido filed a “Third Party Claim” with the trial court, claiming that Nacua was indebted to him and that, to secure payment, Nacua had, through his attorney-in-fact (Mariano), executed in petitioner’s favor a contract of pledge over his 5 marine vessels.
He also filed, on the same day, a “Motion to Declare Levy on Attachment Null and Void and for Preliminary Injunction,” alleging that there had been no valid service of summons on him and that, prior to the purported service of the complaint and summons, the sheriff had already seized and taken possession of the four vessels.The petitioner likewise filed a “Motion to Cancel Bond” on the ground that the OCC had no copy of a “Certificate of Authority” issued in favor of the bonding company. Respondent opposed petitioner’s motion, alleging that petitioner had no legal standing to assail the levy and that there had been a valid service of summons and complaint upon Nacua.
The trial court denied the motions of petitioner, ruling that there had been a proper service of summons and that the petitioner had no personality to challenge the attachment bond, given that only the defendant Nacua could do so. Petitioner then filed a “Complaint of Third-Party Claimant” for “Vindication of Third-Party Claim,” which to date is still pending.
Petitioner filed a special civil action for certiorari under Rule 65 of the ROC with the CA, seeking the nullification of the orders of the trial court denying his “Motion to Declare Levy on Attachment Null and Void” and his “Motion to Cancel Bond.” The CA rendered the assailed decision and denied reconsideration.
ISSUE: WON petitioner had the personality to challenge the attachment writ and bond
HELD: WHEREFORE, the instant petition is hereby DENIED. The decision of the CA is AFFIRMED.
NO
Section 14, Rule 57 of the 1997 Rules of Civil Procedure categorically provides specific remedies to one claiming a right to property attached in a suit in which the claimant is NOT a party:
If the property attached is claimed by any person other than the party against whom attachment had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds of such right or title, and serves such affidavit upon the sheriff while the latter has possession of the attached property, and a copy thereof upon the attaching party, the sheriff shall not be bound to keep the property under attachment, unless the attaching party or his agent, on demand of the sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied upon. In case of disagreement as to such value, the same shall be decided by the court issuing the writ of attachment. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within 120 days from the date of the filing of the bond.
The sheriff shall not be liable for damages for the taking or keeping of such property, to any such third-party claimant, if such bond shall be filed. Nothing herein contained shall prevent such claimant to any third person from vindicating his claim to the property, or prevent the attaching party from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action. (Emphasis ours)
Instead of submitting an affidavit of his title stating his right to the vessels, petitioner elected to pursue his claim in the respondent’s action against Nacua. The veracity of his claim should therefore be threshed out there.
We agree with the findings of the CA that petitioners were NOT without any plain, speedy and adequate remedy in the ordinary course of law. For one, upon the issuance of the Order, commanding the implementation of the Writ of Attachment, petitioners could have availed themselves of the remedy provided for in Section 14, Rule 57 of the ROC..
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Verily, petitioners’ remedy was to ventilate their claims of ownership in a separate and independent reinvindicatory action, as even then suggested by the CA. That was the arena where the question of preferential rights, if any impliedly raised in the first assigned error, could have been fully threshed out.
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In the interest of justice, petitioners can still file an independent civil action to establish their ownership over the barge, if they have not yet done so. (Emphasis ours)
In La Tondeña Distillers, Inc. v. CA, we discussed the remedy available to a person not a party to an action where property is seized pursuant to a writ of delivery:
On the other hand, a stranger to the action, i.e., a person not a party to the action, or as the law puts it, “any other person than the defendant or his agent,” whose property is seized pursuant to the writ of delivery, is accorded the remedy known as a terceria, a third party claim to wit:
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The remedy is identical to that granted to strangers in a proceeding on preliminary attachment or execution of judgments.
In lieu of, or in addition to the filing of a terceria, the third party may, as Section 7 points out, vindicate “his claim to the property by any proper action.” This effort at vindication may take the form of a separate action for recovery of the property, or intervention in the replevin action itself. (Emphasis ours)
A stranger to an action where property in which he claims to have a right is attached must resort to the remedies available under the ROC. The only exception to this rule is when the sheriff mistakenly levies on properties in which the defendant has no interest. In such an event, a summary hearing is held upon application to determine if he has taken hold of property not belonging to the judgment debtor.
In this case, however, Nacua, Jr.’s ownership of the vessels attached was never disputed. Petitioner must therefore follow the prescribed procedure for vindicating his claim on the vessels rather than attempt to erroneously short-circuit the rules.
case digests 