G.R. No.

L-48080 August 31, 1942

JOSE DE BORJA, petitioner,
vs.
SERVILLANO PLATON !" #RAN$IS$O DE BORJA, respondents.
Vicente J. Francisco for petitioner.
E. V. Filamor for respondents.
No appearance for respondent judge
BO$OBO, J.%
Petitioner seeks the setting aside of an order of preliminary attachment issued on November 6,
1940, and reiterated on anuary 1!, 1941, by the respondent udge of the "ourt of #irst $nstance
against petitioner%s properties.
&n 'ugust 1(, 19!6, petitioner brought a civil action in the "ourt of #irst $nstance of )i*al
against +ermogena )omero, #rancisco de ,or-a, osefa .angco and "risanto de ,or-a to annul a
second sale by #rancisco de ,or-a to +ermogena )omero, of a large estate kno/n as the
+acienda ala-ala, and to recover damages in the amount of P(0,000. &n 'ugust (9, 19!6,
#rancisco de ,or-a and his /ife osefa .angco filed an ans/er /ith three counterclaims, and on
1eptember (9, 19!6, they presented t/o more counterclaims. .rial began 1eptember !0, 19!6.
2nder date of 'ugust 4, 19!3, defendants #rancisco de ,or-a, osefa .angco and "risanto de
,or-a submitted their amended ans/er, consisting of a general denial, special defenses, and five
counterclaims and cross4complaints. $n these causes for counter4claim and cross4complaint, it
/as alleged that plaintiff, being a son of defendants #rancisco de ,or-a and osefa .angco, had
been entrusted /ith the administration of the e5tensive interests of his parents, but had been
unfaithful to his trust. 1aid defendants, therefore, prayed, inter alia, that the spouses ,or-a and
.angco be declared o/ners of the +acienda ala-ala in 6uestion7 that plaintiff be re6uired to
render an accounting of the products of said hacienda that he had received and to pay said
spouses at least P100,000 illegally retained by him7 that plaintiff be ordered to account for the
proceed of rice and bran and to pay at least P300,000 unla/fully retained by him7 that plaintiff
be made to deliver P(0,000 /hich he had collected from a debtor of said spouses7 that plaintiff
be like/ise ordered to pay another sum of P9,0!4 collected by him from the same debtor7 and
that plaintiff be re6uired to turn over to defendants #rancisco de ,or-a and osefa .angco the
amount of P40,000 collected by him as indemnity of an insurance policy on property belonging
to said spouses.
&n uly (3, 1940, #rancisco de ,or-a and his /ife filed their petition for preliminary attachment
to cover their third, fourth, and fifth, grounds for cross4complaint, involving a total of P69,0!0.
$n said motion, the defendants ,or-a and /ife stated that they did not include the first and second
causes for cross4complaint because the visible property of plaintiff that could then be attached
/as only /orth about P(,000. &n 'ugust (1, 1940, plaintiff presented an amended ans/er
setting up a counterclaim against defendants ,or-a and /ife in the sum of P99,130.46.
.he order for preliminary attachment is 6uestioned upon several grounds, among /hich are8 91:
that no /rit of attachment can be issued in favor of a defendant /ho presents a counterclaim7 9(:
and the defendants% affidavit /as fatally defective.
&n the first point, /e believe a /rit of preliminary attachment may be issued in favor of a
defendant /ho sets up a counterclaim. #or the purpose of the protection afforded by such
attachment, it is immaterial /hether the defendants ,or-a and /ife simply presented a
counterclaim or brought a separate civil action against ose de ,or-a, plaintiff in the previous
case and petitioner herein. .o lay do/n a subtle distinction /ould be to sanction that formalism
and that technicality /hich are discountenanced by the modern la/s of procedure for the sake of
speedy and substantial -ustice. $n the present case /e see no reason /hy the order of the trial
court should be disturbed, this 6uestion being a matter /ithin its discretion and /e find no grave
abuse of that discretion.
's to be the second ob-ection of petitioner, his counsel strenuously advances the theory that the
affidavit attached to the petition for a /rit of preliminary attachment /as fatally defective
because it failed to allege that ;the amount due to the plaintiff is as much as the sum for /hich
the order is granted above all legal counterclaims; as re6uired in section 4(6, "ode of "ivil
Procedure and section !, )ule 09, )ules of "ourt. Petitioner contends that his counterclaim
against that of #rancisco de ,or-a and /ife being P99,130.46 /hereas the latter%s counterclaim
totalled only P69,0!0, the omission of the allegation referred to is a serious defect. .he trial court
found, ho/ever, that the counterclaim of #rancisco de ,or-a and /ife e5ceed those of the
petitioner ose de ,or-a. $t should be borne in mind that the aggregate counterclaims of #rancisco
de ,or-a and /ife amounted to P<69,000, /hich e5ceeds petitioner%s counterclaim by P369,000
in round figures. =oreover, as the trial court had before it the evidence adduce by both sides, the
petition for a /rit of preliminary attachment having been filed four years after the trial had
begun, /e presume that the lo/er court, having in mind such evidence, ordered the attachment
accordingly.
.he order appealed from is hereby affirmed, /ith costs against the petitioner. 1o ordered.
Yulo, C.J., Moran, Ozaeta and Paras, JJ., concur.