1. Grounds for Issuance

Writ of habeas corpus and violation of constitutional rights.

The most basic criterion for the issuance of the writ is that the individual seeking such relief be illegally deprived of his freedom of movement or placed under some form of illegal restraint. The writ cannot be used to directly assail a judgment rendered by a competent court or tribunal which, having duly acquired jurisdiction was not ousted of this jurisdiction through some irregularity in the course of the proceedings. Writ of habeas corpus may also be availed as a post-conviction remedy when, as a consequence of a judicial proceeding, any of the following exceptional circumstances is attendant: (1) deprivation of a constitution right resulting in the restraint of a person; (2) court had no jurisdiction to impose the sentence or; (3) imposed penalty has been excessive, thus voiding the sentence as to such excess. Mere allegation of a violation of one’s constitutional right is not enough. The violation of constitutional right must be sufficient to void the entire proceedings. (In re: Abellana v. Paredes, GR No. 232006, 2019)

Fraud Committed Need Not be Criminal Fraud

The conduct of the corporate officer was more than an irregularity (i.e., unauthorized taking of corporate funds and appropriating for its own use); and while it is not sufficiently serious to constitute criminal fraud, it is undoubtedly a fraud of a civil character because it is an abuse of confidence to the damage of the corporation and its stockholders and constitutes one of the grounds enumerated for the issuance of a preliminary attachment. (Olsen and Co. v. Olsen, G.R. No. 23237, 1925)

Removal of Property

Under Sec. 1(e) of Rule 57, two requisites must be satisfied to justify a preliminary attachment:

• There is a removal or disposal of the property; and
• The removal or disposal must be with intent to defraud the creditor. (RIANO, 2009, p. 544).

Mere removal or disposal of property, by itself, is not ground for issuance of preliminary attachment, notwithstanding absence of any security for the satisfaction of any judgment against the defendant. The removal or disposal, to justify preliminary attachment, must have been made with intent to defraud defendants’ creditors. (Carpio v. Macadaeg, G.R. No. 17797, 1963).

The execution of a mortgage in favor of another creditor is not conceived by the Rules as one of the means of fraudulently disposing of one’s property. By mortgaging a piece of property, a debtor merely subjects it to a lien but ownership is not parted with. (Adlawan v Torres, G.R. Nos. 65957-58, July 5, 1994)

Grounds to allege in petition

• Death, continued absence, or incapacity of his parents;
• Suspension, termination, or deprivation of parental authority;
• Remarriage of his surviving parent, if the latter is found unsuitable to exercise parental authority; or
• When the Best interests of the minor so require (Sec. 4).

GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION

A preliminary injunction may be granted when it is established:

• That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually;
• That the commission, continuance, or nonperformance of the act or acts complained of during the litigation would probably work injustice to the applicant; or
• That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. (Sec. 3, Rule 58)

Note: The rule on preliminary injunction merely requires that unless restrained, the act complained of will probably violate his rights and tend to render the judgment ineffectual.