[ G.R. No. 38284. September 27, 1933 ] 58 Phil. 482
[ G.R. No. 38284. September 27, 1933 ]
GUILLERMO A. CU UNJIENG AND MARIANO CU UNJIENG, PETITIONERS, VS. LEONARD S. GODDARD, ACTING AS JUDGE OF FIRST INSTANCE OF MANILA, AND HONGKONG & SHANGHAI BANKING CORPORATION, RESPONDENTS. D E C I S I O N
HULL, J.:
Original action for certiorari praying that a writ of attachment levied against the properties of the petitioners and defendants in a civil action in the Court of First Instance of Manila, brought by respondent Hongkong & Shanghai Banking Corporation, be declared null and void.
In that civil action it was alleged in substance that the defendants, the petitioners in this proceeding, entered into a fraudulent conspiracy or combination with one Fernandez, by which .the conspirators would hypothecate and pledge forged securities of various kinds with the various banking institutions and other commercial firms of the City of Manila, and pursuant to said fraudulent conspiracy, secured credit with the bank, and the plaintiff was defrauded by the defendants and Fernandez in the sum of P1,411,312.80. Simultaneously with the filing of the complaint, plaintiffs asked for a writ of attachment, which was granted.
The affidavit filed at that time reads:
“AFFIDAVIT
“B. C. M. Johnston, of legal age and resident of the City of Manila, being duly sworn, states:
“That he is the Manager of the Hongkong & Shanghai Banking Corporation, the plaintiff in the above-entitled cause, and that he knows that there exists a cause of action in favor of said plaintiff and against the defendants, as appears in the complaint on file in this case, reference to which is hereby made as an integral part of this affidavit;
“That the complaint is one for the recovery of money on a cause of action arising from a fraud; and
“That, as set out in the complaint, the defendants in said cause have been guilty of fraud in contracting the debt and in incurring the obligation upon which this action is brought.
(Sgd.) “B. C. M. JOHNSTON”
About one week thereafter, on October 20, 1931, petitioners herein filed a motion to discharge the attachment on the ground that it had been improperly and irregularly issued, which motion contains eight paragraphs.
Paragraph (4) alleges that the affidavit was defective in that it fails to state that there is no other sufficient security for the claim sought to be enforced by the action and that the amount due the plaintiff involves as much as the sum for which the order of attachment was granted, while paragraph (5) alleges that the affidavit for attachment fails to state that the allegations contained in the unverified complaint to which it refers are true and that likewise the affidavit fails to state that affiant knows the facts.
Shortly after the hearing to discharge the attachment had begun, plaintiff asked leave to file an amended affidavit in support of its petition for a writ of attachment.
After oral and written arguments, the respondent judge on November 25, 1931, entered an order admitting the amended affidavit of attachment. The amended affidavit consists of three pages anti is admitted to be in full compliance with the provisions of section 426 of the Code of Civil Procedure, which sets out what must be shown to the court before a writ of attachment shall issue.
Further proceedings were had in the trial court, and on March 4 and April 11, 1932, it entered an order refusing on the showing so far made to dissolve the attachment. On October 4, 1932, these proceedings were instituted, based on the two propositions (1) that an affidavit of attachment cannot be amended and (2) that if a cause of action arises ex delicto, it is not within the terms of our attachment statutes.
Respondents claim that petitioners had not exhausted their rights in the trial court and that if the petitioner regarded the order of April 11 as a final order, petitioners are guilty of laches by waiting until October before filing a complaint.
Without considering the minor questions raised by respondents, we believe it is for the best interests of all concerned to dispose of the case on the points raised by petitioners.
As to whether amendments should be admitted, respondents rely upon section 110 of the Code of Civil Procedure, which reads:
“Sec. 110. Amendments in General.—The court shall, in furtherance of justice, and on such terms, if any, as may be proper, allow a party to amend any pleading or proceeding and at any stage of the action, in either the Court of First Instance or the Supreme Court, by adding or striking out the name of any party, either plaintiff or defendant, or by correcting a mistake in the name of a party, or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. The court may also, upon like terms, allow an answer or other pleading to be made after the time limited by the rules of the court for filing the same. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard.” and claim it should be read in connection with section 2 of the same Code:
“Sec. 2. Construction of Code.—The provisions of this Code, and the proceedings under it, shall be liberally construed, in order to promote its object and assist the parties in obtaining speedy justice.”
This court has held in the case of Central Capiz vs. Salas (43 Phil., 930), that section 2 applies to applications for writs, of attachment and that the affidavit may be read in connection with the complaint.
In the original affidavit, affiant did not swear on information and belief but expressly swore on knowledge. It is also clear from the affidavit that the ground on which the attachment was sought to be secured, is paragraph 4 of section 412 of the Code of Civil Procedure. It is defective in (a) that there is no allegation, either in the affidavit or the complaint, that there was no other sufficient security for the claim sought to be enforced by the action and (b) that the amount due to the plaintiff above all legal set-offs or counterclaims is as much as the sum for which the order is granted. The claim of petitioners that the original affidavit is defective is virtually admitted by respondents by their having filed an amended affidavit and by their insistence upon their right to amend.
Our section 110 of the Code of Civil Procedure is based on section 473 of the California Code of Civil Procedure and is a general statute authorizing, in the discretion of the court, any amendment, in the further interest of justice, of pleadings or procedure at any stage of the action. Proceedings in the Court of First Instance to discharge the attachment were taken under section 441 of the Code of Civil Procedure, which reads:
“Sec. 441. Discharge of Attachment on Motion.—The defendant may also at any time either before or after the release of the attached property, or before any attachment shall have been actually levied, upon reasonable notice to the plaintiff, apply to the judge or justice of the peace who granted the order of attachment, or to the judge of the court in which the action is pending, for an order to discharge the attachment on the ground that the same was improperly or irregularly issued. If the motion be made on affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence in addition to those on which the attachment was made.
“If upon such application it satisfactorily appears that the writ of attachment was improperly or irregularly issued, it must be discharged.”
The corresponding sections of the California Code, namely sections 556, 557, and 558, read:
“Sec. 556. When a motion to discharge attachment may be made, and upon what grounds.—The defendant may also at any time, either before or after the release of the attached property, or before any attachment shall have been actually levied, apply, on motion, upon reasonable notice to the plaintiff, to the court in which the action is brought; or to a judge thereof, that the writ of attachment be discharged on the ground that the same was improperly or irregularly issued.
“Sec. 557. When motion made on affidavit, it may be opposed by affidavit.—If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence, in addition to those on which the attachment was made.
“Sec. 558. When writ must be discharged.—If upon such application, it satisfactorily appears that the writ of attachment was improperly or irregularly issued it must be discharged; provided that such attachment shall not be discharged if at or before the hearing of such application, the writ of attachment, or the affidavit, or undertaking upon which such attachment was based shall be amended and made to conform to the provisions of this chapter.”
In a long line of decisions from Castle Bros., Wolf & Sons vs. Go-Juno (7 Phil., 144), where it was said:
“Inasmuch as this section 95 is taken bodily from the California Code of Procedure, we feel justified in following the decisions of the Supreme Court of California in the interpretation of the same.”
to Pando vs. Kette and Sellner (54 Phil., 683), where this court uses the following language:
“The provision of our Code of Civil Procedure having been adopted from section 692 of the California Code, it must be understood that our law was promulgated with the construction placed upon it by the State of California.” where a provision of our Code of Civil Procedure has been adopted bodily from one of the States of the Union, we have followed the rule that it was undoubtedly the intention of the Legislature to promulgate the law with the construction that had already been placed upon it.
At the time sections 110 and 441 were adopted, the similar provisions of the California Code had already been construed by the Supreme Court of California. In Winters vs. Pearson (72 Cal., 553), that court used the following language:
“On a motion to discharge a writ of attachment, on the ground that it was improperly or irregularly issued, the affidavit on which the writ was issued is not amendable. This, in our opinion, is in accordance with section 558 of the Code of Civil Procedure, which provides that if on such an application, it satisfactorily appears that the writ was improperly or irregularly issued, it must be discharged.
“To allow the affidavit to be made good by amendment, and upon such action refuse to discharge the writ, would, in our judgment, violate the requirements of the section just above cited.”
In Tibbet vs. Tom Sue (122 Cal., 206), the court followed Winters vs. Pearson, saying:
“Respondent asks the privilege of amending the undertaking, if it be held defective by this court. From such relief he invokes section 473 of the Code of Civil Procedure; wherein amendments are allowed to pleadings or proceedings in furtherance of justice. In speaking as to an application to discharge a writ of attachment, the Code says: ‘If upon such application it satisfactorily appears that the writ of attachment was improperly or irregularly issued, it must be discharged.’ (Code Civ. Proc., sec. 558.) This section is specific and expressly directed to the subject of attachments. It must be held to control and limit the general provisions of the aforesaid section 473. The lawmaking body has declared what shall be the action of the court under the circumstances here presented, and such action demands that the writ should be discharged. It is said in Winters vs. Pearson (72 Cal., 553), that the affidavit on attachment is not amendable. The undertaking upon attachment stands upon the same ground.”
The fact that California in 1909 changed the law by permitting amendments of a defective affidavit for attachment under certain specified circumstances, does not affect this case, as our Legislature has allowed the law to stand unchanged.
It therefore follows that where the affidavit for attachment is fatally defective, the attachment must be held to have been improperly or irregularly issued and must be discharged, and such fatal defect cannot be cured by amendment. The writ of attachment in this case should therefore have been discharged.
In view of the above views, the second ground for the discharge of the writ of attachment presented by petitioners herein, is reserved for discussion in another case.
The writ of certiorari herein prayed for must be granted. So ordered.
Avanceña, C. J., Street, Malcolm, Villa-Real, Abad Santos, and Butte, JJ., concur.