EN BANC
G.R. No. L-27940 June 10, 1971
FRANCISCO MILITANTE, III, plaintiff-appellant,
vs.
ANTERO EDROSOLANO and MANUEL BELLOSILLO, defendants-appellees.
Manuel A. Roa & German M. Lopez for plaintiff-appellant. Cirilo Y. Ganzon for defendant-appellee Antero Edrosolano.
Diosdado Gangalao for defendant-appellee Manuel Bellosillo.
Separate Opinions
DIZON, J., concurring:
The undersigned concurs with the majority opinion penned by Mr. Justice Enrique M. Fernando, for the reason herein after set forth.
Appellant's complaint was dismissed by the lower court upon the ground that the facts stated therein do not constitute a cause of action in his favor. The undersigned disagrees.
A Cause of Action has been defined as a delicit or wrong committed by one party in violation of the right of another.ℒαwρhi৷
On the other hand, a writ of Preliminary Attachment is a provisional remedy issued, upon in order of the court where an action is pending, to be levied upon the property or properties of the defendant therein, the same to be held thereafter by the sheriff as security for the satisfaction of whatever judgment might be secured in said action by the attaching creditor against the defendant. Likewise it is settled in this jurisdiction that the effect of an act of Preliminary Attachment levied upon the property or properties of the defendant is to create or impose thereon a lien in favor of the attaching creditor in relation to the purpose for which the writ was issued.
In the light of the foregoing, the undersigned believes that the facts alleged in appellant's complaint are sufficient to constitute a cause of action in his favor and against the appellees.
The "right" of appellant is obviously the lien that he had acquired upon the properties of appellees by reason of the writ of Preliminary Attachment levied thereon in connection with Civil Case No. 6838 mentioned in the majority opinion. On the other hand, the delict violative of, or that tends to violate that right is the writ of execution and/or the execution sale of the attached properties had in connection with the judgment rendered in Civil Case No. 6216 likewise mentioned in the majority opinion, clear as it is that any right derived from said execution sale either actually violates or tends to render ineffective the lien acquired by appellant upon said properties.
Of course, whether appellant will be able to substantiate or establish the right he claims, or whether, in law, such right is superior to any other right derived from or acquired as a result of the execution sale mentioned herefore, is a matter dependent upon the conclusion that the trial court might arrive at after a trial on the basis of the facts established by the evidence.
PREMISES CONSIDERED, I vote to reverse the appealed decision.
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