(Procedural Remedies: Improper service of writ of replevin)
Facts: Petitioner avers that the writ of replevin was served upon and signed by the security guard on duty where the rock-crushing plant to be seized was located contrary to the sheriff’s return stating that both the writ and the summons was served upon petitioner. Nine (9) days after the writ was served on the security guard, petitioner filed an answer to the complaint accompanied by a prayer for the approval of her redelivery bond. 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 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.
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.