GR 38284; (September, 1933) (Digest)
G.R. No. 38284 ; September 17, 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.
FACTS
The Hongkong & Shanghai Banking Corporation filed a civil action against the petitioners (the Cu Unjiengs) and Rafael Fernandez, alleging a fraudulent conspiracy to hypothecate forged securities, defrauding the bank of over P1.4 million. Simultaneously with the complaint, the bank applied for and obtained a writ of attachment against the petitioners’ properties based on an affidavit by its manager. The affidavit stated the action was for money arising from fraud and that the defendants were guilty of fraud in contracting the debt, but it failed to allege (1) that there was no other sufficient security for the claim, and (2) that the amount due was as much as the sum for which attachment was granted, as required by statute. Petitioners moved to discharge the attachment for these defects. During hearings, the bank sought and was granted leave by the trial judge to file an amended affidavit curing the defects. Petitioners then filed this original action for certiorari, arguing the attachment was void.
ISSUE
Whether a defective affidavit in support of a writ of attachment can be amended after the writ has been issued and after a motion to discharge it has been filed.
RULING
No. The Supreme Court granted the petition and declared the writ of attachment null and void. The Court held that the statutory requirements for an affidavit in attachment proceedings are mandatory and jurisdictional. The affidavit must contain the specific factual averments required by law to justify the issuance of the writ. A defective affidavit confers no authority upon the court to issue the writ, and the writ so issued is void. The defect cannot be cured by amendment after the writ has been issued, as the amendment would constitute a new affidavit made after the court had already acted without jurisdiction. The general provisions on amendment of pleadings do not apply to cure a jurisdictional defect in a foundational affidavit for a provisional remedy like attachment. The attachment was therefore improperly issued and must be discharged.
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