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Civil Procedure Case Digests (Case No. 92 to 95)

#92

PERFECTA, PRIMITIVO and QUIRINO CAVILI

vs.
HON. TEODORO N. FLORENDO, CLARITA, ULPIANO, ESTRELL, and PLACIDA CAVILI, ET AL.
(G.R. No. 73039 October 9, 1987)

FACTS:

Private respondents filed Civil Case No. 6880 against herein petitioners for which summons was issued to
them. Summons was not served to Primitivo and Quirino, but only to Perfecta. Atty. Jose P. Alamino filed
a motion for extension to answer in behalf of the defendants, manifesting the representation of his client
Perfecta Cavili that she will inform her brothers Primitivo and Quirino about the case.

After failing to file an answer within the time allowed, they were declared in default, and judgment by
default soon followed. However, an order for new trial was issued upon order of Atty. Jose P. Alamillo, on
grounds of lack of jurisdiction and, with a meritorious defense that the properties sought to be partitioned
have already been the subject of a written partition agreement between the direct heirs of the parties.

When the case was re-raffled, Judge Cipriano Vamenta set aside the order for new trial and reinstated the
judgment by default. The Supreme Court reversed the said decision and ordered new trial upon petition
for certiorari filed by respondents

Respondent judge Florendo disqualified petitioner Perfecta as a witness upon a motion for her
disqualification filed by private respondents, alleging that Perfecta has lost her standing in court and she
cannot be allowed to participate in all premise the even as a witness. Petitioners filed this petition for
certiorari before the Supreme Court.

ISSUE:

Whether Perfecta should be disqualified to appear as witness

HELD:

NO.

Section 18, Rule 130 of the Revised Rules of Court states who are qualified to be witnesses. It provides:

Section 18. Witnesses; their qualifications. Except as provided in the next succeeding section,
all persons who, having organs of sense, can perceive, and perceiving, can make known their
perception to others, may be witnesses. Neither parties nor other persons interested in the
outcome of a case shall be excluded; nor those who have been convicted of crime; nor any person
on account of his opinion on matters of religious belief.

There is no provision of the Rules disqualifying parties declared in default from taking the witness stand
for non-disqualified parties. The law does not provide default as an exception. The specific enumeration
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Civil Procedure Case Digests (Case No. 92 to 95)

of disqualified witnesses (under Sections 19 and 20 of Rule 130 and Section 15 of Rule 132) excludes the
operation of causes of disability other than those mentioned in the Rules. As a general rule, where there
are express exceptions these comprise the only limitations on the operation of a statute and no other
exception will be implied.

Rule 18, Section 2, likewise, does not support respondents contention. Under this rule, a party declared
in default shall not be entitled to notice of subsequent proceedings nor to take part in the trial. A party in
default loses his right to present his defense, control the proceedings, and examine or cross-examine
witnesses. There is nothing in the rule, however, which contemplates a disqualification to be a witness or
an opponent in a case. Default does not make him an incompetent.

As opposed to a party litigant, a witness is merely a beholder, a spectator or onlooker, called upon to
testify to what he has seen, heard, or observed. As such, he takes no active part in the contest of rights
between the parties. A party in default may thus be cited as a witness by his co-defendants who have the
standing and the right to present evidence which the former may provide. To reject Perfects Cavili's
presentation of testimonial evidence would be to treat Primitivo and Quirino, as if they too were in
default.

#93

AMPARO SANTOS, petitioner,

vs.
HON. FELISA DE LA FUENTE SAMSON, Judge of the Court of First Instance of Pampanga and Angeles
City, Fifth Judicial District, Branch IV, and ANGELA A. REYES, INC., respondents.
(G.R. No. L-46371 December 14, 1981)

FACTS:

Angel A. Reyes, Inc., a domestic corporation with principal offices at 1363 Quezon Boulevard Extension,
Quezon City, filed a complaint for "Unlawful Detainer" against the herein petitioner, Amparo Santos, with
the Court of First Instance of Pampanga. Summons and a copy of the complaint were served upon Amparo
Santos on August 16, 1976, but she failed to file the required answer within the reglementary period.
Upon motion of the plaintiff therein, Amparo Santos was declared in default and the plaintiff was directed
to present its evidence.

Upon receipt of the order declaring her in default, the petitioner, Amparo Santos, filed a motion to dismiss
the complaint on the ground that the Court of First Instance had no jurisdiction over the action for
"unlawful detainer" which is within the competence of the municipal court. The respondent Judge issued
an order on April 26, 1977, denying the motion to dismiss for lack of merit since the case was principally
an annulment or cancellation of a contract of sale of real property.

On May 3, 1977, the herein petitioner filed a motion to lift the order of default, alleging that she failed to
file an answer by reason of fraud, mistake and/or excusable negligence in that after receiving the
summons and a copy of the complaint, she went to see Angel A. Reyes at his office in 1363 Quezon
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Civil Procedure Case Digests (Case No. 92 to 95)

Boulevard Extension, Quezon City, to confer with him regarding the case; that Angel A. Reyes, during their
meeting, assured her that if she would update her accounts on the lots, he would not pursue the case
anymore; that with that understanding, she continued to make payments on the lots, which the plaintiff
received; and that the assurance of Angel A. Reyes made her believe that it was no longer necessary for
her to answer the complaint and realized her error quite too late when she received a copy of the order
declaring her in default.

ISSUE:

Whether the order of default should be lifted.

HELD:

YES. the respondent Judge erred in denying the petitioner's motion to lift the order of default. The record
shows that upon receipt of the summons and copy of the complaint, the petitioner immediately went to
see Mr. Angel A. Reyes, president and executive officer of the respondent corporation bearing his name,
about the case. Mr. Reyes assured her that if she would update her accounts, he would not pursue the
case anymore. Accordingly, the petitioner paid her accrued obligations to the plaintiff and did not file any
answer to the complaint anymore, and was surprised when she received a copy of the order declaring her
in default. Immediately thereafter, she took steps to vacate the order of default. Under the circumstances,
the failure of the herein petitioner to answer the complaint within the reglementary period is excusable.

Besides, the petitioner appears to have a good and meritorious defense. She averred that the records of
the respondent corporation are not in order and that she had been religiously and faithfully paying her
account with the respondent corporation for twelve (12) years already and had paid to the corporation
the amount of P96,000.00 although the total contract price for the two lots in question is only P57,500.00.
If proven, such circumstances may defeat the plaintiff 's claim.

While the motion to fifth the order of default was filed four (4) months after the petitioner was declared
in default, no judgment has been rendered in the case as yet so that the filing of the said motion was
within the period prescribed by the Rules. Under Section 3, Rule 9 of the Rules of Court, a party declared
in default may at any time after discovery thereof and before judgment file a motion under oath to set
aside the order of default upon proper showing that his failure to answer was due to fraud, accident,
mistake or excusable neglect and that he has a meritorious defense.

#94

ERLINDA GAJUDO, FERNANDO GAJUDO, JR., ESTELITA GAJUDO, BALTAZAR GAJUDO and DANILO
ARAHAN CHUA, Petitioners,
vs.
TRADERS ROYAL BANK, Respondent.
(G.R. No. 151098 March 21, 2006)

FACTS:
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Civil Procedure Case Digests (Case No. 92 to 95)

The petitioners filed a complaint before the Regional Trial Court of Quezon City, against respondent
Traders Royal Bank, the City Sheriff of Quezon City and the Register of Deeds of Quezon City to annul the
extra-judicial foreclosure and auction sale made by [the] city sheriff of Quezon City of a parcel of land
covered by TCT No. 16711 of the Register of Deeds of Quezon City, the conventional redemption thereof,
and prayed for damages and the issuance of a writ of preliminary injunction.

Pre-trial having been concluded, the parties entered upon trial, which dragged/lengthened to several
months due to postponements. Upon 11 June 1988, however, a big conflagration hit the City Hall of
Quezon City, which destroyed, amongst other things, the records of the case. After the records were
reconstituted, petitioners discovered that the foreclosed property was sold by respondent bank to the
Ceroferr Realty Corporation, and that the notice of lis pendens annotated on the certificate of title of the
foreclosed property, had already been cancelled. Accordingly, petitioners, with leave of court, amended
their complaint, but the Trial Court dismissed the case without prejudice due to petitioners failure to pay
additional filing fees.

So, upon 11 June 1990, [petitioners] re-filed the complaint with the same Court, whereat it was docketed
as Civil Case No. 90-5749, and assigned to Branch 98: the amended complaint substantially reproduced
the allegations of the original complaint. But [petitioners] this time impleaded as additional defendants
the Ceroferr Realty Corporation and/or Cesar Roque, and Lorna Roque, and included an additional cause
of action, to wit: that said new defendants conspired with [respondent] bank in [canceling] the notice of
lis pendens by falsifying a letter sent to and filed with the office of the Register of Deeds of Quezon City,
purportedly for the cancellation of said notice.

Upon motion, petitioner was allowed by court to present evidence ex parte insofar as bank was concerned
since the respondent bank failed to file an answer and was declared in default. Respondent bank appealed
the Partial Decision to the CA. During the pendency of that appeal.

The CA ruled in favor of respondent bank. Deemed, however, to have rested on shaky ground was the
latters Motion to Set Aside Partial Decision by Default Against Traders Royal Bank and Admit Defendant
Traders Royal Banks Answer. The reasons offered by the bank for failing to file an answer were considered
by the appellate court to be at once specious, shallow and sophistical and can hardly be dignified as a
mistake or excusable negligence, which ordinary prudence could not have guarded against.

On the issue of whether petitioners had convincingly established their right to relief, the appellate court
held that there was no ground to invalidate the foreclosure sale of the mortgaged property. First, under
Section 3 of Act No. 3135, an extrajudicial foreclosure sale did not require personal notice to the
mortgagor. Second, there was no allegation or proof of noncompliance with the publication requirement
and the public posting of the notice of sale, provided under Act No. 3135, as amended. Third, there was
no showing of inadequacy of price as no competent evidence was presented to show the real market
value of the land sold or the readiness of another buyer to offer a price higher than that at which the
property had been sold.

Moreover, petitioners failed to prove that the bank had agreed to sell the property back to them. After
pointing out that the redemption period had long expired, respondents written communications to
Petitioner Chua only showed, at most, that the former had made a proposal for the latter to buy back the
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Civil Procedure Case Digests (Case No. 92 to 95)

property at the current market price; and that Petitioner Chua was requested to make an offer to
repurchase the property, because another buyer had already made an offer to buy it. On the other hand,
respondent noted that the Interbank check for P4,000 was for deposit only. Thus, there was no showing
that the check had been issued to cover part of the repurchase price.

ISSUE:

Whether provisions of Section 3, Rule 9 of the 1997 Rules of Civil Procedure should be applied instead of
the rule on preponderance of evidence under Section 1, Rule 133 of the Rules of Court.

HELD:

Between the two rules, there is no incompatibility that would preclude the application of either one of
them. To begin with, Section 3 of Rule 9 governs the procedure which the trial court is directed to take
when a defendant fails to file an answer. According to this provision, the court shall proceed to render
judgment granting the claimant such relief as his pleading may warrant, subject to the courts discretion
on whether to require the presentation of evidence ex parte. The same provision also sets down
guidelines on the nature and extent of the relief that may be granted. In particular, the courts judgment
shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages.

As in other civil cases, basic is the rule that the party making allegations has the burden of proving them
by a preponderance of evidence.] Moreover, parties must rely on the strength of their own evidence, not
upon the weakness of the defense offered by their opponent. This principle holds true, especially when
the latter has had no opportunity to present evidence because of a default order. Needless to say, the
extent of the relief that may be granted can only be as much as has been alleged and proved with
preponderant evidence required under Section 1 of Rule 133.

In sum, while petitioners were allowed to present evidence ex parte under Section 3 of Rule 9, they were
not excused from establishing their claims for damages by the required quantum of proof under Section
1 of Rule 133. Stated differently, any advantage they may have gained from the ex parte presentation of
evidence does not lower the degree of proof required. Clearly then, there is no incompatibility between
the two rules.

#95

ANTONIO GARCIA, petitioner,

vs.
THE COURT OF APPEALS (FIFTH DIVISION) and SPS. WILLIAM UY and MA. JAJORIE UY, respondents.
(G.R. NO. 83929 June 11, 1992)

FACTS:
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Civil Procedure Case Digests (Case No. 92 to 95)

Antonio Garcia filed an action for damages against private respondent spouses, William and Ma. Jajorie
Uy, before the RTC of Pasig, for padlocking the commercial stalls rented by petitioner from private
respondents at Virra Mall Shopping Center, Greenhills, San Juan.

For failure of private respondents to file their answer within the reglementary period, petitioner moved
to declare the former in default and for reception of his evidence ex-parte in which the cortt granted.
Respondents filed an appearance with motion for extension of time to file answer from said date. The
trial court denied the motion for having been filed out of time.

In the meantime, petitioner presented his evidence ex-parte. The trial court issued a judgment of default
against private respondents, a copy of which was received by them on 18 August 1987. On 11 August
1987, petitioner filed an ex-parte motion for execution pending appeal which the trial court granted on
21 August 1987 and accordingly issued the writ upon petitioner's filing of a bond in the amount of
P520,000.00.

Whereupon, private respondents appealed to respondent Court of Appeals, challenging the validity of the
writ of execution because it was granted without proper notice to them and without hearing.

Court of Appeals rendered a decision granting private respondents' petition for certiorari and setting aside
the order of the trial court granting the writ of execution. A motion to reconsider the above decision was
denied.

ISSUE:

Whether a party who has been declared in default entitled to notice of a motion for execution pending
appeal of a judgment by default?

HELD:

YES.

Petitioner's citation of Section 2, Rule 39 of the Rules of Court to support his aforesaid argument cannot
aid his cause. Citig the ruling in the S.C. Johnson case:

Moreover, in the same case of Aguilos vs. Barrios, this Court held that "a party has a right
to rely upon the rules of court and to expect that she would be given notice as required
thereby. As being in default does not imply a waiver of rights, as aforesaid, the defaulted
party has the right to expect compliance with the requisites for executing a judgment
pending appeal under Section 2 of Rule 39, thus:

Sec. 2. Execution pending appeal. On motion of the prevailing party with notice
to the adverse party the court may, in its discretion, order execution to issue even before
the expiration of the time to appeal, upon good reasons to be stated in a special order. If
a record on appeal is filed thereafter, the motion and the special order shall be included
therein.
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As for private respondents' (defendants') loss of standing in court, by reason of having been declared in
default, the party in default loses the right to present his defense and examine or cross-examine
witnesses. It does not mean that being declared in default, and thereby losing one's standing, constitutes
a waiver of all rights; what is waived only is the right to be heard and to present evidence during the trial
while default prevails. A party in default is still entitled to notice of final judgments land orders and
proceedings taken subsequent thereto.

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