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RED, Sunshine S.
Civil Procedure Case Digests (Case No. 92 to 95)

(G.R. No. 73039 October 9, 1987)


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.


Whether Perfecta should be disqualified to appear as witness



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
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RED, Sunshine S.
Civil Procedure Case Digests (Case No. 92 to 95)

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 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.

AMPARO SANTOS, petitioner,
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)


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.
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RED, Sunshine S.
Civil Procedure Case Digests (Case No. 92 to 95)

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 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.
Whether the order of default should be lifted.
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
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RED, Sunshine S.
Civil Procedure Case Digests (Case No. 92 to 95)

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

(G.R. No. 151098 March 21, 2006)


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

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
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RED, Sunshine S.
Civil Procedure Case Digests (Case No. 92 to 95)

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 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.


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.


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.
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RED, Sunshine S.
Civil Procedure Case Digests (Case No. 92 to 95)

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

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.


ANTONIO GARCIA, petitioner,

JAJORIE UY, respondents.
(G.R. NO. 83929 June 11, 1992)


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

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.
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RED, Sunshine S.
Civil Procedure Case Digests (Case No. 92 to 95)

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.


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



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.

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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