[G.R. NO.

165895 : June 5, 2009]

TERLYNGRACE RIVERA, Petitioner, v. FLORENCIO L. VARGAS, Respondent.

Facts:

On February 24, 2003, the respondent Florencio Vargas filed a complaint against the petitioner and several John
Does before branch 02 of RTC in Tuguegarao City, for the recovery of a rock crushing plant located in Sariya
Quezon.

Vargas claims ownership of the equipment having purchased and imported the same directly from South Korea. The
equipment was allegedly entrusted to the petitioner's husband, Jan T. Rivera, who died sometime in late 2002, as
caretaker of the respondent's construction aggregates business in Batangas.

According to Vargas, petitioner (Terlyn Grace Rivera) failed to return the said equipment after her husband's death
despite his repeated demands, thus forcing him to resort to court action.

The complaint was accompanied by a prayer for the issuance of a writ of replevin and the necessary bond amounting
to P2,400,000.00.

Summon was served upon petitioner through her personal secretary at her residence in Paranaque City,

however the WRIT OF REPLEVIN was served upon by a certain Joseph Rejumo, the security guard on duty in the
petitioner’s crushing plant in Sariya Quezon on April 29, 203, contrary to Sheriff’s return stating that the writ was
served upon Revira.

On May 8, 2003, (9 days after the writ was served) Rivera filed her answer, manifestation, and motion for the
acceptance of petitioner's redelivery bond

In her answer, petitioner countered that the rock-crushing plant was ceded in favor of her husband as his share
following the dissolution of the partnership formed between Jan Rivera and respondent's wife, Iluminada Vargas
(Iluminada)

She further averred that from the time that the partnership was dissolved sometime in 2000 until Jan Rivera's death
in late 2002, it was petitioner's husband who exercised ownership over the said equipment without any disturbance
from respondent.1

The RTC, however, denied the redelivery bond for having been filed beyond the five-day mandatory period
prescribed in Sections 5 and 6 of Rule 60.

Petitioner elevated the matter to CA for petition for certiorari under Rule 65 but was denied for lack of merit.
Petitionermoved for reconsideration, but the same was also denied.

Petitioner argues in the case at bar via the petition on Rule 45 that the RTC committed grave abuse of discretion in
denying her counterbond on the ground that it was filed out of time.

She contends that the mandatory five-day period did not even begin to run in this case due to the improper service of
the writ of replevin, contrary to Section 4 of Rule 60

Issue:

WON the denial of counterbond filed beyond the 5 day mandatory period is erroneous considering the writ was
improperly served.

Ruling: YES

Before a final judgment, property cannot be seized unless by virtue of some provision of law. The Rules of Court,
under Rule 60, authorizes such seizure in cases of replevin. However, a person seeking a remedy in an action for
replevin must follow the course laid down in the statute, since the remedy is penal in nature. When no attempt is
made to comply with the provisions of the law relating to seizure in this kind of action, the writ or order allowing the
seizure is erroneous and may be set aside on motion by the adverse party.
The process regarding the execution of the writ of replevin in Section 4 of Rule 60 is unambiguous: the sheriff, upon
receipt of the writ of replevin and prior to the taking of the property, must serve a copy thereof to the adverse party
(petitioner, in this case) together with the application, the affidavit of merit, and the replevin bond. The reasons are
simple, i.e., to provide proper notice to the adverse party that his property is being seized in accordance with the
court’s order upon application by the other party, and ultimately to allow the adverse party to take the proper remedy
consequent thereto.

Service of the writ upon the adverse party is mandatory in line with the constitutional guaranty on procedural due
process and as safeguard against unreasonable searches and seizures.

In the case at bar since the writ was invalidly served, petitioner is correct in contending that there is no reckoning
point from which the mandatory five-day period shall commence to run.

The writ must satisfy proper service in order to be valid and effective: i.e. it should be directed to the officer who is
authorized to serve it; and it should be served upon the person who not only has the possession or custody of the
property involved but who is also a party or agent of a party to the action. Consequently, a trial court is deemed to
have acted without or in excess of its jurisdiction with respect to the ancillary action of replevin if it seizes and detains
a personalty on the basis of a writ that was improperly served, such as what happened in this case.

Petitioner’s proper remedy should have been to file a motion to quash the writ of replevin or a motion to vacate the
order of seizure. Nevertheless, petitioner’s filing of an application for a redelivery bond, while not necessary, did not
thereby waive her right to question the improper service.

The trial for the main action shall continue. Respondent may, however, file a new application for replevin should he
choose to do so.
BA Finance Corporation v. Hon. Court of Appeals and Roberto M. Reyes

Facts:

 Spouses Manahan executed a promissory note binding themselves to pay Carmasters, Inc., P83,080.00 in
36 monthly installments.

 To secure payment, the Manahan spouses executed a deed of chattel mortgage over a motor vehicle, a
Ford Cortina.

 Carmasters later assigned the promissory note and the chattel mortgage to petitioner BA Finance
Corporation with the conformity of the Manahans.

 When the Manahans failed to pay the installments, petitioner sent demand letters. The demands not having
been heeded (take notice of), petitioner filed a complaint for replevin with damages against the spouses, as
well as against a Jon Doe (Roberto M. Reyes) praying for the recovery of the vehicle with an alternative
prayer for the payment of a sum of money should the vehicle not be returned.

 The lower court issued a writ of replevin

 The service of summons upon the spouses Manahan was caused to be served by petitioner. The original of
the summons had the name and the signature of private respondent Roberto M. Reyes indicating that he
received a copy of the summons and the complaint.

 Petitioner, through its Legal Assistant, issued a certification to the effect that it had received from Orson R.
Santiago, the deputy sheriff of the RTC the Ford Cortina seized from private respondent Roberto M. Reyes,
the John Doe referred to in the complaint, in Sorsogon, Sorsogon

 the lower court came out with an order of seizure. A few months later, the court issued an order dismissing
the caste for failure to prosecute and further ordering the plaintiff to return the property seized with all its
accessories to defendant (Roberto M. Reyes)

 The order was recalled, but summons still could not be served on the Manahans. So, the trial court
dismissed the case and ordered that the vehicle be returned to Reyes. The CA affirmed

 On appeal, the CA denied petitioner’s motion for reconsideration. Hence this petition.

Issue:

Whether or not a mortgagee can maintain an action for replevin against any possessor of the object of a chattel
mortgage even if the latter were not a party to the mortgage.

Ruling: NO

the court has no jurisdiction over their persons, no summons having been served on them.
Consequently, because the principal debtors were not brought before the jurisdiction of the court for
failure to serve summons, there can be no cause of action against Reyes who is merely an ancillary
debtor.

An adverse possessor, who is not the mortgagor, cannot just be deprived of his possession, let alone be bound by
the terms of the chattel mortgage contract, simply because the mortgagee brings up an action for replevin.

Roberto M. Reyes is merely ancillary debtor in this case. The defendant spouses Manahan being the
principal debtor(s) and as there is no showing that the latter has been brought before the jurisdiction
of this court, it must necessarily follow that the plaintiff has no cause of action against said Roberto
M. Reyes herein before referred to as defendant John Doe. Under the circumstances, it is incumbent
upon the plaintiff to return the seized vehicle unto the said Roberto M. Reyes

No. Replevin is both a form of principal remedy and of a provisional relief. It may refer either to the action itself, i.e.,
to regain the possession of personal chattels being wrongfully detained from the plaintiff by another, or to the
provisional remedy that would allow the plaintiff to retain the thing during the pendency of the action and hold
it pendente lite. The action is primarily possessory in nature and generally determines nothing more than the right of
possession. The person in possession of the property sought to be replevied is ordinarily the proper and only
necessary party defendant, and the plaintiff is not required to so join as defendants other persons claiming a right on
the property but not in possession thereof. The Rules of Court allows an application for the immediate possession of
the property but the plaintiff must show that he has a good legal basis, i.e., a clear title thereto, for seeking
such interim possession.

Where the right of the plaintiff to the possession of the specific property is so conceded or evident, the action need
only be maintained against him who so possesses the property. The court, in an earlier case held that persons having
a special right of property in the goods the recovery of which is sought, such as a chattel mortgagee, may maintain
an action for replevin therefor. Where the mortgage authorizes the mortgagee to take possession of the property on
default, he may maintain an action to recover possession of the mortgaged chattels from the mortgagor or from any
person in whose hands he may find them.

A chattel mortgagee, unlike a pledgee, need not be in, nor entitled to, the possession of the property unless and until
the mortgagor defaults and the mortgagee thereupon seeks to foreclose thereon. Since the mortgagee’s right of
possession is conditioned upon the actual fact of default which itself may be controverted, the inclusion of other
parties, like the debtor or the mortgagor himself, may be required in order to allow a full and conclusive determination
of the case. When the mortgagee seeks a replevin in order to effect the eventual foreclosure of the mortgage, it is not
only the existence of, but also the mortgagor’s default on, the chattel mortgage that, among other things, can
properly uphold the right to replevy the property. The burden to establish a valid justification for that action lies with
the plaintiff.

Advent Capital and Finance Corp. vs Young, GR NO. 183018, August 3, 2011
PRINCIPLE: Upon the dismissal of the replevin case for failure to prosecute, the writ of the seizure became functus
officio and should have been lifted

FACTS:

 This is a replevin suit instituted by petitioner Advent Capital and Finance Corporation (Advent) against
Respondent Roland Young to recover the possession of a 1996 Mercedez Benz which is registered in
Advent’s name.

 Prior to the replevin case, or on 16 July 2001, Advent filed for corporate rehabilitation with the Regional Trial
Court of Makati City, Branch 142 (rehabilitation court)

 On August 27, 2001, the court issued an Order (Stay Order) wherein stated that the enforcement of all
claims whether for money or otherwise against Advent, its guarantors, and sureties were not solidarily liable
with it, it is stayed.

 On 5 November 2001, Young filed his Comment to the Petition for Rehabilitation, claiming, among others,
several employee benefits allegedly due him as Advent’s former president and chief executive officer.

 On 6 November 2002, the rehabilitation court approved the rehabilitation plan submitted by Advent. Included
in the inventory of Advent’s assets was the subject car which remained in Young’s possession at the time.

 Young’s obstinate refusal to return the subject car, after repeated demands, prompted Advent to file the
replevin case on 8 July 2003. (RTC of Makati City, Branch)

 After Advent’s posting of ₱3,000,000 replevin bond, which was double the value of the subject car at the
time, through Stronghold Insurance Company, Incorporated (Stronghold), the trial court issued a Writ of
Seizure8 directing the Sheriff to seize the subject car from Young. Upon receipt of the Writ of Seizure, Young
turned over the car to Advent,9 which delivered the same to the rehabilitation receiver.10

 Young filed an answer, stating that as a former employee of Advent, he had the option to purchase the
subject car and to offset the value of the car with the proceeds of his retirement pay and stock option plan.

 Advent filed a Reply with a motion to dismiss Young’s counterclaim, alleging that the counterclaim did not
arise from or has no logical relationship with the issue of ownership of the subject car.

 The parties entered into a pre-trial where they recited the facts and the issues to be resolved during the trial.

 The Trial Court ordered the dismissal of the replevin case for Advent's failure to prosecute (because both
counsel acknowledged the return of the car in their respective manifestation filed) and dismissed Young's
counterclaim for lack of jurisdiction.

 Young filed a Motion for partial reconsideration of the dismissal order with respect to his counterclaim and
filed an omnibus motion that Advent return the car and pay him 1.2M in damages for improper and irregular
seizure.

 TC denied both motions. Young filed a petition for certiorari and mandamus with the Court of Appeals
seeking to annul the trial courts orders of March 24, 2006 (denial of Motion for Partial Reconsideration ) and
July 5, 2006 ( denial of motion to resolve his omnibus motion)

 In his petition before the Court of Appeals, Young argued mainly that the trial court committed grave abuse
of discretion amounting to lack or excess of jurisdiction in (1) not directing the return of the subject vehicle to
him; (2) refusing to hold a hearing to determine the damages to be recovered against the replevin bond; and
(3) dismissing his counterclaim.

 .Court of Appeals (CA) ruled in favor of Young, the writ of seizure issued as an incident of the main action
(for replevin)became functus officio and should have been recalled or lifted

 Since there was no adjudication on the merits of the case, the issue of who between Advent and petitioner
has the better right to possess the subject car was not determined. As such, the parties should be restored
to their status immediately before the institution of the case.

 Accordingly, respondent Advent Capital and Finance Corporation is directed to return the subject car to
petitioner.
  The Regional Trial Court of Makati City (Branch 147) is directed to conduct a hearing on, and determine,
petitioner’s claim for damages against the replevin bond posted by Stronghold Insurance Co.

.ISSUES:

1. WON CA committed an error in directing the return of the car to Young. (NO)

2. WON CA erred in ordering the TC to set a hearing for the determination of damages against the replevin.

Ruling:

1. The Court of Appeals was right in directing the trial court to return the seized car to Young since this is
the necessary consequence of the dismissal of the replevin case for failure to prosecute without
prejudice. the writ of seizure, which is merely ancillary in nature, became functus officio( (officer or
agency whose mandate has expired due to accomplishment or arrival of expiry date) and should have
been lifted. There was no adjudication on the merits, which means that there was no determination of
the issue who has the better right to possess the subject car. Advent cannot therefore retain possession
of the subject car considering that it was not adjudged as the prevailing party entitled to the remedy of
replevin.

The dismissal of the replevin case for failure to prosecute results in the restoration of the parties’ status
prior to litigation, as if no complaint was filed at all. To let the writ of seizure stand after the dismissal of
the complaint would be adjudging Advent as the prevailing party, when precisely no decision on the
merits had been rendered. Accordingly, the parties must be reverted to their status quo ante. Since
Young possessed the subject car before the filing of the replevin case, the same must be returned to
him, as if no complaint was filed at all.

2. Yes. The order directing the Trial court to set a hearing to determine damages against the posted
replevin bond is not proper. Sec 20 of Rule 57 in relation to Sec. 10 of Rule 60 essentially allows the
application for damages on account of improper, irregular, or excessive attachment to be filed at any
time before the judgment becomes executory. It should be filed in the same case that is the main
action, and with the court having jurisdiction over the case at the time of the application. court
to set a hearing for the determination of damages against the replevin bond.

G.R. No. L-32674 February 22, 1973

NORTHERN MOTORS, INC., petitioner,

vs.
HON. AMEURFINA MELENCIO HERRERA, Judge of the Court of First Instance of Manila, Br. XVII, and RALPH R.
TAGUBA, respondents.
Sycip, Salazar, Luna, Manalo and Feliciano for petitioner.

Manuel L. Querubin for respondents.

 Northern Motors, Inc., petitioner, filed a complaint against respondent Ralph Taguba and another person
designated as "John Doe," alleging that the respondent executed in favor of the petitioner a promissory note
binding himself to pay plaintiff the sum of P18,623.75 in monthly installments as follows: P528.75 on March
15, 1969 and P517.00 every 15th day of the month for 35 months beginning April 15, 1969 until February
15, 1972, with 12% interest per annum on the unpaid installments;

 As security, the respondent Taguba executed in favor of the petitioner a chattel mortgage over a sedan

 Respondent paid only the first few installments but failed and refused in spite of repeated demands, to pay
the 13 other installments

 Petitioner has elected to avail the option of extra judicially foreclosing the mortgage and alleged that the
mortgaged sedan is in the possession of the defendant, who has no legal right to the possession thereof

 Plaintiff prayed that upon approval of the bond a writ of replevin be issued for the seizure of the car
wherever it may be found and for its delivery to plaintiff, and after hearing, plaintiff be adjudged as having
the rightful possession and ownership thereof and that in default of delivery, defendants be sentenced to
pay plaintiff the sum of P17,659.49 with interest thereon at the rate of 12% per annum from June 19, 1969,
until said principal sum is fully paid, and a sum equivalent to 25% of the amount due as and for attorney's
fees and costs of collection, and the costs of suit.

 Attached to the complaint is a bond for P36,000.00 and an "Affidavit of Replevin" executed by an officer of
the plaintiff corporation

 On July 1, 1970, an Order was issued by respondent judge denying petitioner's prayer for a writ of replevin
because the rules "require that an affidavit be submitted alleging that the plaintiff is the owner of the property
claimed, or that he is entitled to its possession"; and therefore the affidavit attached to the complaint is
insufficient, for it is clear therefrom that plaintiff "is not the owner of the motor vehicle mortgaged to it, and it
is not entitled to its possession merely because the mortgagor has failed to pay the account guaranteed by
the mortgage."

 A motion for reconsideration was filed by the petitioner, but the same was likewise denied by the respondent
judge

 It is Her Honor's view that after the mortgagor has breached the chattel mortgage and refused to deliver the
mortgaged chattel to a public officer for a foreclosure sale, a replevin suit should be instituted by the
mortgagee, "but only for the purpose of delivering the chattel to the public officer for foreclosure sale".

 Respondent judge further stated that there is no allegation that plaintiff mortgagee has asked or directed a
public officer to foreclose the mortgage and that the mortgagor had refused to surrender the mortgaged
chattel to said public officer, it cannot be held that either the public officer or the mortgagee is entitled to
replevin; that the present complaint seeks "that plaintiff be adjudged to have rightful possession" over the
chattel without qualification whatsoever which, in the practical sense, can revest ownership in it of the
repossessed chattel in contravention of Article 2088 of the Civil Code, and that even if the mortgagee has a
right of possession, that right is not unqualified but is subject to the obligation of delivering the possession of
the mortgaged chattel to the public officer for foreclosure. The challenged orders were reversed.

 A motion for reconsideration was filed by petitioner but the same was likewise denied by the court.

 A motion for
reconsideration was
 filed by petitioner, but
the same was
 likewise denied by
respondent judge.

Issue:

Whether or not a writ of replevin may be issued

Rulings:

Yes. Where the mortgage authorizes the mortgagee to take possession of the property on default, he may maintain
an action to recover possession of the mortgaged chattels from the mortgagor or from any person in whose hands he
may find them. This is irrespective of whether the mortgage contemplates a summary sale of the property or
foreclosure by court action

When a debtor defaults and the creditor desires to foreclose the mortgaged chattel, he must necessarily take the
mortgaged property in his hands, but when the debtor refuses to yield the possession of the property, the creditor
must institute an action either to effect a judicial foreclosure directly or secure possession as a preliminary to the
sale.

The Rules do not require that in an action for replevin, the plaintiff should allege that the "mortgagee has asked or
directed a public officer to foreclose the mortgage and that the mortgagor has refused to surrender the mortgaged
chattel to such public officer

."The affidavit of the Assistant to the General Manager of Northern Motors, Inc. attached to the complaint
substantially complies with the requirements under Section 2 of Rule 60 of the Rules of Court.

All that is required by Section 2 of Rule 60 is that upon, applying for an order for replevin, the plaintiff must show that
he is "the owner of the property claimed, particularly describing it, or is entitled to the possession thereof"; that the
property is wrongfully detained by the defendant with, an allegation on the cause of detention; that the same has not
been taken for any tax assessment or fine levied pursuant to law nor seized under any execution, or an attachment
against the property of such plaintiff or if so seized that it is exempt from seizure. The affidavit must also state the
actual value of the property.
G.R. No. L-43794 August 9, 1935

LUIS FRANCISCO, petitioner,

vs.
FRANCISCO ZANDUETA, Judge of First Instance of Manila, and
EUGENIO LEOPOLDO FRANCISCO, represented by his natural mother and curator ad litem,
ROSARIO GOMEZ, respondents.

Vicente J. Francisco for petitioner.

J.E. Blanco for respondents.

Facts:

 the respondent, Eugenio Leopoldo Francisco, aged two years, through his natural mother and guardian ad
litem, Rosario Gomez, instituted an action for support against the herein petitioner (Luis Francisco) in the
Court of First Instance of the City of Manila, case No. 47238.

 In that case it is alleged that the plaintiff is the acknowledged son of Luis Francisco and as such is entitled to
support.

 The petitioner, as defendant in that case, answered by a general denial of each and every material
allegation contained in the complaint and as a special defense alleged that he never acknowledged and
could not have acknowledged that he never acknowledged and could not have acknowledged the plaintiff as
his son; that he was not present at the baptism of the plaintiff and that he was married at the time it is
alleged that the plaintiff was born.

 The Respondent judge issued an order on May 2, 1935, in favor of Francisco. Respondent judge Francisco
Zandueta issued an order granting Eugenio a monthly pension, pendente lite.

 On May 11, 1935, Luis moved for reconsideration on the ground that it was issued in excess of jurisdiction in
view of the fact that the civil status of the plaintiff was placed in issue by the pleadings and the plaintiff has
no right to monthly support until his status as a child is finally determined.

 The Motion for Reconsideration was denied, hence the institution of special proceedings.

 Praying to have the trial transferred, the counsel of herein petitioner, in compromise, agreed that his client
would pay the monthly pension during the pendency of the case.

 However, in the petitioner’s answer, he alleged that the agreement of said attorney to the payment of P30.00
monthly support, is absolutely false.

Issue:
W/N Eugenio Francisco is entitled to support without first establishing his status as petitioner’s son

Ruling:

No. The answer as to whether or not petitioner’s counsel really agreed to have him pay the pension during the case’s
pendency is not necessary to the solution of the case.

As in the case of Yangco vs Rohde, the fact of the civil status must be proven first before a right of support can be
derived. The Court ruled that it is necessary for Eugenio to prove, through his guardian ad litem, his civil status as the
petitioner’s son. As such, no right of support can be given because the very civil status of sonship, from which the
right is derived, is in question.

G.R. No. L-59906 October 23, 1982

BUENAVENTURA SAN JUAN, petitioner,

vs.
HON. MANUEL E. VALENZUELA, Judge of the Court of First Instance of Rizal and DOROTEA MEJIA, respondents.

Francisco D. Lozano for petitioner.

Manuel Valenzuela in his own behalf.

Facts:

 On September 16, 1981, the marriage between respondent Mejia and petitioner San Juan, solemnized on
October 2, 1973, was declared null and void by the Court of First Instance of Rizal on the ground of a prior
and subsisting marriage between the petitioner and one Isabel Bandin.

 On February 25, 1981, respondent Mejia instituted the instance action against the petitioner, seeking
support for herself and her two minor children.

 After issues were joined, the respondent judge, on motion of Mejia, entered the challenged order granting
support pendente lite , and the support was fixed at Php 2,500.00 a month commencing from January 1,
1982, to be paid to the plaintiff on or the 5th day of each month until this case is finally adjudicated

 On March 16, 1982, Petitioner instituted a motion for reconsideration of the above order on the grounds that
(1) the amount is grossly disproportionate to Petitioner's means; (2) the Petitioner is not obliged to support
Respondent Mejia as their marriage is null and void; and (3) no evidence was presented as to petitioner's
present resources, was denied.

 Pending the resolution of said petition, San Juan filed with the trial court a manifestation proposing to settle
his obligation of Php 15,000 representing the amount of support that accrued from January to June 1982
and to pay the same in three equal installments. The proposal was approved by the court.

 In the same manifestation, San Juan sought the reduction of the amount of support pendente lite to Php
1,000 a month on the ground that the sum of Php 2,500 previously fixed by the respondent judge is now
beyond his means to pay

Issue:

Whether the amount of support pendente lite previously fixed by the respondent judge may be reduced.
Ruling:

Yes, the Order fixing the amount of support pendente lite is not final in character in the sense that it can be the
subject of modification, depending on the changing conditions affecting the ability of the obligor to pay the amount
fixed for support. The same should be resolved by the lower court on the basis of the evidence to be presented at the
proper hearing.