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Rule 9

Case 1
G.R. No. L-41767 August 23, 1978
MR. AND MRS. ROMEO FERRER and ANNETTE FERRER, petitioners,
vs.
HON. VICENTE G. ERICTA, in his capacity as Presiding Judge of the Court of First Instance of Rizal,
Quezon City, Branch XVIII, MR. AND MRS. FRANCIS PFLEIDER and DENNIS PFLEIDER, respondents.
Delano F. Villaruz for petitioners.
Porderio C. David for private respondents.

ANTONIO, J:
Mandamus to compel the immediate execution of the Decision of the Court of First Instance of Quezon City,
Branch XVIII, presided over by respondent Judge, in Civil Case No. Q-19647, dated July 21, 1975. The pertinent
facts are as follows:
In a complaint for damages against respondents, dated December 27, 1974 but actually filed on January 6, 1975
(Civil Case No. Q-19647), and assigned to the sala of respondent Judge, it was alleged that defendants Mr. and
Mrs. Francis Pfleider, residents of Bayawan, Negros Oriental, were the owners or operators of a Ford pick-up
car; that at about 5:00 o'clock in the afternoon of December 31, 1970, in the streets of Bayawan, Negros
Oriental, their son, defendant Dennis Pfleider, who was then only sixteen (16) years of age, without proper official
authority, drove the above-described vehicle, without due regard to traffic rules and regulations, and without
taking the necessary precaution to prevent injury to persons or damage to property, and as a consequence the
pickup car was overturned, causing physical injuries to plaintiff Annette Ferrer, who was then a passenger
therein, which injuries paralyzed her and required medical treatment and confinement at different hospitals for
more than two (2) years; that as a result of the physical injuries sustained by Annette, she suffered unimaginable
physical pain, mental anguish, and her parents also suffered mental anguish, moral shock and spent a
considerable sum of money for her treatment. They prayed that defendants be ordered to reimburse them for
actual expenses as well as other damages.

evidence ex parte. On May 21, 1975, petitioners moved that they be granted an extension of ten (10) days from
May 22, 1975 to present her evidence, which was granted by the court a quo. The presentation of petitioners'
evidence was later continued by the trial court to June 16, 1975, when the deposition of Annette Ferrer was
submitted by petitioners and admitted by the trial court.
On June 26, 1975, private respondents filed a motion to "set aside the order of default and subsequent
pleadings" on the ground that "defendants' failure to appear for pre-trial was due to accident or excusable
neglect." This was opposed by petitioners on the ground that the said pleading was not under oath, contrary to
the requirements of Sec. 3, Rule 18 of the Rules, and that it was not accompanied by an affidavit of merit
showing that the defendants have a good defense. In view of this, the motion of private respondents was denied
by respondent Judge on July 21, 1975. On the same date, respondent Judge rendered judgment against private
respondents, finding that the minor Dennis Pfleider, was allowed by his parents to operate a Ford pick-up car and
because of his reckless negligence caused the accident in question, resulting in injuries to Annette, and ordering
the defendants, as a result thereof, to pay jointly and severally the plaintiffs the following amounts: (1)
P24,500.00 for actual expenses, hospitalization and medical expenses; (2) P24,000.00 for actual expenses for
the care, medicines of plaintiff Annette for helps from December 31, 1970 to December 31, 1974; (3) P50,000.00
for moral damages; (4) P10,000.00 for exemplary damages; (5) P5,000.00 for attorney's fees; and (6) costs of
suit.
On September 1, 1975, private respondents filed a Motion for Reconsideration 1 of the decision and of the order
denying the motion to set aside order of default, based on the following grounds: (1) the complaint states no
cause of action insofar as Mr. and Mrs. Pfleider are concerned because it does not allege that at the time of the
mishap, defendant Dennis Pfleider was living with them, the fact being that at such time he was living apart from
them, hence, there can be no application of Article 2180 of the Civil Code, upon which parents' liability is
premised; and (2) that tile complaint shows on its face "that it was filed only on January 6, 1975, or after the
lapse of MORE THAN FOUR YEARS from the date of the accident on December 31, 1970", likewise appearing
from the complaint and, therefore, the action has already prescribed under Article 1146 of the Civil Code.

In due time, defendants filed their answer, putting up the affirmative defense that defendant Dennis Pfleider
exercised due care and utmost diligence in driving the vehicle aforementioned and alleging that Annette Ferrer
and the other persons aboard said vehicle were not passengers in the strict sense of the term, but were merely
joy riders and that, consequently, defendants had no obligation whatsoever to plaintiffs.

A Supplemental Motion for Reconsideration 2was subsequently filed by defendants-private respondents on


September 10, 1975, alleging that their defense of prescription has not been waived and may be raised even at
such stage of the proceedings because on the face of the complaint, as well as from the plaintiff's evidence, their
cause of action had already prescribed, citing as authority the decision of this Court in Philippine National Bank
v. Pacific Commission House, 3 as well as the decisions quoted therein. The Opposition 4 to the above
supplemental motion interposed by plaintiffs-petitioners averred that: (a) the defense of prescription had been
waived while the defense that the complaint states no cause of action "is available only at any time not later than
the trial and prior to the decision"; (b) inasmuch as defendants have been declared in default for failure to appear
at the pretrial conference, they have lost their standing in court and cannot be allowed to adduce evidence nor to
take part in the trial, in accordance with Section 2 of Rule 18 of the Rules of Court; and (c) the motion and
supplemental motion for reconsideration are pro forma because the defenses raised therein have been
previously raised and passed upon by respondent court in resolving defendants' motion to set aside order of
default. Being pro forma, said motion and supplemental motion do not suspend the running of the thirty-day
period to appeal, which was from August 5, 1975, when defendants received a copy of the decision, to
September 4, 1975, and hence the decision has already become final and executory. Plaintiffs-petitioners
accordingly prayed that a writ of execution be issued to enforce the judgment in their favor.

At the pre-trial on May 12, 1975, only plaintiffs-petitioners and their counsel were present. Consequently,
defendants-private respondents were declared in default and the plaintiff petitioners were allowed to present their

On September 23, 1975, respondent judge, without setting aside the order of default, issued an order absolving
defendants from any liability on the grounds that: (a) the complaint states no cause of action because it does not

allege that Dennis Pfleider was living with his parents at the time of the vehicular accident, considering that under
Article 2180 of the Civil Code, the father and, in case of his death or incapacity the mother, are only responsible
for the damages caused by their minor children who live in their company; and (b) that the defense of
prescription is meritorious, since the complaint was filed more than four (4) years after the date of the accident,
and the action to recover damages based on quasi-delict prescribes in four (4) years. Hence, the instant petition
for mandamus.
The basic issue is whether the defense of prescription had been deemed waived by private respondents' failure
to allege the same in their answer.
As early as Chua Lamko v. Dioso, et al., 5 this Court sustained the dismissal of a counterclaim on the ground of
prescription, although such defense was not raised in the answer of the plaintiff. Thus, this Court held that where
the answer does not take issue with the complaint as to dates involved in the defendant's claim of prescription,
his failure to specifically plead prescription in the answer does not constitute a waiver of the defense of
prescription. It was explained that the defense of prescription, even if not raised in a motion to dismiss or in the
answer, is not deemed waived unless such defense raises issues of fact not appearing upon the preceding
pleading.
In Philippine National Bank v. Perez, et al., 6which was an action filed by the Philippine National Bank on March
22, 1961 for revival of a judgment rendered on December 29, 1949 against Amando Perez, Gregorio Pumuntoc
and Virginia de Pumuntoc pursuant to Section 6, Rule 39 of the rules of court the defendants were declared in
default for their failure to file their answer. There upon, the plaintiff submitted its evidence, but when the case was
submitted for decision, the court a quo dismissed the complaint on the ground that plaintiff's cause of action had
already prescribed under Articles 1144 and 1152 of the Civil Code. The plaintiff in said case, contending that
since prescription is a defense that can only be set up by defendants, the court could not motu proprio consider it
as a basis for dismissal, moved to reconsider the order, but its motion was denied. When the issue was raised to
this Court, We ruled:
It is true that the defense of prescription can only be considered if the same is invoked as such in
the answer of the defendant and that in this particular instance no such defense was invoked
because the defendants had been declared in default, but such rule does riot obtain when the
evidence shows that the cause of action upon which plaintiff's complaint is based is already barred
by the statute of limitations. (Emphasis supplied.)
Again, in Philippine National Bank v. Pacific Commission House, 7 where the action sought to revive a judgment
rendered by the Court of First Instance of Manila on February 3, 1953 and it was patent from the stamp
appearing on the first page of the complaint that the complaint was actually filed on May 31, 1963, this Court
sustained the dismissal of the complaint on the ground of prescription, although such defense was not raised in
the answer, overruling the appellants' invocation of Section 2 of Rule 9 of the Rules of Court that "defenses and
objections not pleaded either in a motion to dismiss or in tile answer are deemed waived." We held therein that
"... the fact that the plaintiff's own allegation in tile complaint or the evidence it presented shows clearly that the
action had prescribed removes this case from the rule regarding waiver of the defense by failure to plead the
same."
In the present case, there is no issue of fact involved in connection with the question of prescription. The
complaint in Civil Case No. Q-19647 alleges that the accident which caused the injuries sustained by plaintiff

Annette Ferrer occured on December 31, 1970. It is undisputed that the action for damages was only filed on
January 6, 1975. Actions for damages arising from physical injuries because of a tort must be filed within four
years. 8 The four-year period begins from the day the quasi-delict is committed or the date of the accident. 9
WHEREFORE, the instant petition for mandamus is hereby DISMISSED, without pronouncement as to costs.
Fernando (Chairman), Barredo, Aquino, Concepcion, Jr.

Case 2
G.R. No. L-48577 September 30, 1980
SULPICIO A. GARCIA, petitioner,
vs.
COLONEL PAUL C. MATHIS, in his capacity as Base Commander, Clark Air Force Base (CAFB) or his
SUCCESSOR, and the HONORABLE COURT OF FIRST INSTANCE OF PANGASINAN, Branch IV, Dagupan
City, respondents.

ABAD SANTOS, J.:


Petition for certiorari to set aside the Order of the respondent judge, dated June 4, 1978, dismissing petitioner's
Complaint against the private respondent and another Order, dated July 7, 1978, denying a motion to reconsider
the aforesaid order.
The factual background can be briefly stated as follows.
In Civil Case No. D-4097 of the Court of First Instance of Pangasinan presided by the respondent judge, Sulpicio
Garcia, the petitioner herein, sued Colonel Paul C. Mathis in his capacity as Base Commander, CAFB, acting for
and in behalf of the United States of America. The complaint, which was filed on November 8, 1977, alleged that
Garcia was a civilian employee at Clark Air Force Base from May 26, 1949, to August 23, 1956, when he was
dismissed for alleged bribery and collusion. He prayed inter alia that he be reinstated to his former position, and
paid back wages, moral damages, attorney's fees and costs of the suit.
The defendant Mathis entered a special appearance and filed a motion for the dismissal of the complaint upon
the ground that the trial court had no jurisdiction over his person because he was being sued as the
representative of a foreign sovereign "which has not consented and does not now consent to the maintenance of
the present suit."
On June 7, 1978, the respondent judge issued an Order as aforesaid the text of which reads as follows:

Without considering the issue of jurisdiction raised by the defendant in his motion to dismiss the
above-entitled case, the Court finds that the cause of action has already prescribed, because
paragraphs 3 and 5 of the complaint alleged that the services of the plaintiff has been terminated
on August 23, 1956.
WHEREFORE, the above-entitled case is hereby dismissed.
The only issue in this case is whether or not the respondent judge committed a grave abuse of discretion
amounting to lack of jurisdiction when he dismissed the complaint on the ground of prescription which the
defendant did not raise in any of his pleadings.
It is true that an action will not be held to have prescribed if prescription is not expressly invoked. However there
are exceptions to this rule and one of them is when the plaintiff's own allegations in his complaint show clearly
that the action has prescribed. (Philippine National Bank vs. Pacific Commission House, G.R. No. L-22675,
March 28, 1969, 27 SCRA 766). In this case the complaint shows clearly that the plaintiff's action had prescribed
for he alleged that he was removed on August 23, 1956 (par. 5) but the case was filed only on November 18,
1977, after a lapse of more than 21 years. Prescinding, therefore, the defense of jurisdiction which is apparently
meritorious, the complaint was properly dismissed.
It is not amiss to state here that because of the special appearance which the defendant had entered, he was
constrained to confine himself to showing that the trial court did not have jurisdiction over his person and had to
exclude all other non-jurisdictional grounds in his motion to dismiss otherwise he could be deemed to have
abandoned his special appearance and voluntarily submitted himself to the jurisdiction of the court. (Republic vs.
Ker z Co., Ltd; G.R. No. L-21609, Sept. 29,1966, 18 SCRA 207).
WHEREFORE, finding the petition to be without merit, the same is hereby dismissal without any special
pronouncement as to costs.

Case 3
G.R. No. 104846 November 23, 1995

SO ORDERED.
Guerrero and De Castro, JJ., concur.

RODRIGO GABUYA represented by his attorney-in-fact LUCIA PONCE, petitioner,


vs.
ANTONIO LAYUG and HON. FEDERICO NOEL, REGIONAL TRIAL COURT, ILIGAN CITY, BRANCH
2, respondents.

BELLOSILLO, J.:
This is a petition for certiorari and prohibition under Rule 65 of the Rules of Court seeking to annul the orders
dated 16 October 1991 and 11 March 1992 of respondent Judge Federico V. Noel, Regional Trial Court, Lanao
del Norte, Br. 2, in Civil Case No. II-1408, Antonio Layug v.Rodrigo Gabuya, and to annul the proceedings held
thereon. The questioned orders and proceedings are alleged to unduly interfere with the final judgment of this
Court in G.R. No. 75364 involving the same parties, the same facts and the same issues. 1

On 4 October 1978 private respondent Antonio Layug entered into a contract with petitioner Rodrigo Gabuya for
the purchase by the former of the latter's twelve (12) lots situated in Iligan City for the price of P120,000.00
payable in three (3) yearly installments. Respondent Layug paid the first two (2) annual installments totaling
P80,000.00 but failed to pay the last installment of P40,000.00. When formal demands for payment were made
by petitioner and respondent repeatedly failed to pay the former brought suit in the then Court of First Instance of
Lanao del Norte (now Regional Trial Court) for annulment of contract and for recovery of damages against
Layug.

1408 now pending with the Regional Trial Court of Lanao del Norte, Br. 2. It is final as to all claims and demands
of petitioner Gabuya and respondent Layug with regard to the twelve (12) lots in Iligan City subject matter of the
contract of sale ordered cancelled by this Court. This judgment binds the parties not only as to every matter
offered and received to sustain or defeat their claims or demand but as to any other admissible matter which
might have been offered for that purpose and of all other matters that could have been adjudged in that case.

After trial judgment was rendered in favor of petitioner. Respondent appealed to the Court of Appeals which on
30 August 1985 affirmed the judgment. The appellate court (1) ordered the rescission of the conditional sale of
the twelve (12) lots described in the contract; (2) declared as rentals for the twelve (12) lots from 1978 to the
present (30 August 1985) all payments made by respondent Layug to Gabuya plus the legal interest thereon
from the execution of the contract; (3) ordered respondent Layug to vacate the twelve (12) lots and deliver the
possession thereof to petitioner Gabuya; and, (4) ordered respondent Layug to pay petitioner Gabuya the sum of
P5,000.00 as attorney's fees and to pay the costs.

In the case before us, the claim for reimbursement of the value of improvements introduced by respondent Layug
on the property subject of the contract of sale should have been raised by him as a counterclaim in the complaint
for annulment of contract before the trial court in the first case instituted by petitioner Gabuya. The failure of
respondent Layug to raise these matters therein precludes the re-litigation of the same facts in a separate
complaint. It has been ruled that when defendants are sued for recovery of a tract of land they ought to have
presented a counterclaim for the value of the improvements thereon and the amount of damages suffered by
them because the claim for such improvements and indemnity is necessarily connected with the suit for the
restitution or recovery of land claimed to have been improved, and with the result of the execution of the
judgment awarding recovery. 3

On appeal to us we affirmed the Court of Appeals particularly insofar as it authorized the cancellation by
petitioner Gabuya of the contract of sale with respondent Layug but modified the same to the affect that the
cancellation should be effective and fully operative only upon payment of the "cash surrender value" of his
payments in the sum of P40,000.00.

On the basis of the foregoing, the questioned orders issued by respondent judge on 16 October 1991 and 11
March 1992 restraining the deputy sheriff from implementing the writ of execution of the final judgment of this
Court in G.R. No. 75364 were issued by respondent judge with grave abuse of discretion amounting to lack of
jurisdiction.

On 8 March 1989 our decision became final and executory. Consequently, on 31 May 1989 a writ of execution
was issued by the trial court. On 8 June 1989 a certificate of turnover was issued by Sheriff Elias Anacleto in
favor of petitioner. But the order of execution was elevated by respondent Layug through a petition
for certiorari to the Court of Appeals which subsequently dismissed it.

WHEREFORE, the petition is GRANTED. The questioned orders of respondent judge dated 16 October 1991
and 11 March 1992, as well as the proceedings in Civil Case No. II-1408 now pending with the Regional Trial
Court of Lanao del Norte, Br. 2, are ANNULLED and SET ASIDE. Respondent judge, or whoever may now be
acting in his behalf or assigned to the case, is directed to pursue immediately the implementation of the writ of
execution issued on 31 May 1989 to satisfy the judgment that has long become final and executory. Costs
against private respondent.

On 30 September 1991 the sheriff submitted to the trial court a return of the writ of execution with the
recommendation that the buildings of private respondent found in the property be demolished.

SO ORDERED.
Meanwhile, on 27 June 1989 respondent Layug filed a complaint for specific performance with prayer for a
temporary restraining order against petitioner seeking reimbursement for the value of the improvements,
buildings and materials he (Layug) introduced in the premises covered by the contract of sale which by final
judgment of this Court was already ordered rescinded.
His motion to dismiss in the court below having been denied petitioner filed his answer to the complaint.
On 16 October 1991 respondent judge issued an order directing Deputy Provincial Sheriff Salcedo "to refrain
from disposs(ess)ing plaintiff of the possession of the property until ordered by the court." 2 On 22 January 1992
the trial court on motion of petitioner reconsidered its order. However on 11 March 1992, this time upon motion of
respondent Layug, it again reconsidered its order and reinstated the restraining order of 16 October 1991 against
Deputy Sheriff Salcedo. Hence this petition by Rodrigo Gabuya against respondent judge and Antonio Layug
alleging grave abuse of discretion amounting to lack of jurisdiction on the part of respondent judge in taking
cognizance of Civil Case No. II-1408 and in issuing the questioned orders.
There is obvious merit in the petition. The final judgment of this Court in G.R. No. 75364 promulgated 23
November 1988 involving the same parties, facts and issues constitutes an absolute bar to Civil Case No. II-

Padilla, Davide, Jr., Kapunan and Hermosisima, Jr., JJ., concur.


Footnotes

Instead of filing an answer, defendant moved for the dismissal of Civil Case 860 on the ground, inter alia,
that the subject thereof was involved and intimately related to that in Civil Case No. IV-93062 of the Municipal
Court of Manila. The court a quo sustained the motion and dismissed the case.
Plaintiff-appellant moved for reconsideration and new trial. When this failed, she instituted the present
appeal.1wph1.t

Case 4
Republic of the Philippines

The dismissal of Civil Case No. 860 by the court a quobecause of the pendency of Civil Case No. IV-93062
in the municipal court of Manila is predicated on the supposition that plaintiff's claim is a compulsory counterclaim that should be filed in the latter case. There is no question that it arises out of the same transaction which
is the basis of the complaint in Civil Case No. IV-93062 and does not require the presence of third parties over
whom the municipal court of Manila could not acquire jurisdiction.

SUPREME COURT
Manila
EN BANC
G.R. No. L-22485

March 13, 1968

CONSUELO V. CALO, doing business under the trade name CVC Lumber Industries, assisted by
MARCOS M. CALO, plaintiffs-appellants,
vs.
AJAX INTERNATIONAL, INCORPORATED, defendant-appellee.
Tranquilino O. Calo, Jr. for plaintiffs-appellants.
Sergio P. Villareal for defendant-appellee.
BENGZON, J.P., J.:
Sometime on May 7, 1959, plaintiff-appellant Calo ordered from defendant-appellee Ajax International,
Inc., 1,200 ft. of John Shaw wire rope at P2.85 per foot. The transaction was evidenced by Charge Order No.
37071, for P3,420.00.
According to plaintiff Calo, when the wire rope was delivered to Butuan City, the same was found short of
300 ft. Plaintiff then wrote two letters to defendant asking for either completion of delivery or account adjustment
of the alleged undelivered 300 ft. of wire rope.
On November 20, 1961, a complaint docketed as Civil Case No. IV-93062 was filed in the Municipal Court
of Manila by one Adolfo Benavides who claimed to have acquired the outstanding credit account of Calo from
defendant Ajax International, Inc. Charge Order No. 37071 was among those included in the assigned account.
Subsequently, a judgment by default was entered, and a writ of execution issued, against plaintiff Calo. The latter
resorted to this Court on a petition for certiorari, prohibition and mandamus.1 We set aside the judgment of
default and writ of execution issued against plaintiff Calo and remanded the case for further proceedings.
On January 23, 1962, plaintiff Calo, assisted by her husband, Marcos Calo, filed in the Court of First
Instance of Agusan a complaint against defendant asking (1) that the latter either effect complete delivery of
Charge Order No. 37071 or that she be relieved from paying P855.00 and (2) that the latter indemnify her for
P12,000 as attorney's fees, damages and expenses of litigation.2 The case was docketed as Civil Case No. 860.

However, plaintiff's claim is not a compulsory counterclaim in Civil Case No. IV-93062 for the simple
reason that the amount thereof exceeds the jurisdiction of the municipal court. The rule that a compulsory
counterclaim not set up is barred, when applied to the municipal court, presupposes that the amount involved is
within the said court's jurisdiction. Otherwise, as this Court had already noted in Yu Lay v. Galmes 3we would
come to the absurd situation where a claim must be filed with the municipal court which it is prohibited from
taking cognizance of, being beyond its jurisdiction.
Besides, the reason underlying the rule, which is to settle all related controversies in one sitting only, does
not obtain. For, even if the counterclaim in excess of the amount cognizable by the inferior court is set up, the
defendant cannot obtain positive relief. The Rules allow this only for the defendant to prevent plaintiff from
recovering from him.4 This means that should the court find both plaintiff's complaint and defendant's
counterclaim (for an amount exceeding said court's jurisdiction) meritorious, it will simply dismiss the complaint
on the ground that defendant has a bigger credit. Since defendant still has to institute a separate action for the
remaining balance of his counterclaim, the previous litigation did not really settle all related controversies.
Plaintiff Calo's claim of P12,000.00 not being a compulsory counterclaim in Civil Case No. VI-93062, it
need not be filed there. The pendency then of said civil case could not be pleaded in abatement of Civil Case No.
860. Consequently, the lower court erred in dismissing plaintiff's complaint.
WHEREFORE, the order of dismissal appealed from is hereby reversed and the case remanded for further
proceedings. Costs against appellee Ajax International, Inc. So ordered.
Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.
Concepcion, C.J., is on leave.
Case 5
G.R. No. 73039 October 9, 1987

PERFECTA CAVILI, PRIMITIVO CAVILI and QUIRINO CAVILI, petitioners,


vs.
HON. TEODORO N. FLORENDO, Presiding Judge, Branch XXXVI, Regional Trial Court of Negros Oriental,
7th Judicial Region, CLARITA CAVILI, ULPIANO CAVILI, ESTRELLA CAVILI, PLACIDA CAVILI, ET
AL., respondents.
No. L-68680 October 9, 1987
PERFECTA CAVILI, PRIMITIVO CAVILI and QUIRINO CAVILI, petitioners,
vs.
HON. TEODORO N. FLORENDO, Presiding Judge, Branch XXXVI, Regional Trial Court, 7th Judicial
Region, CLARITA CAVILI, ULPIANO CAVILI, ESTRELLA CAVILI, PLACIDA CAVILI, GREGORIA CAVILI,
FORTUNATA CAVILI, AMILITA CAVILI, APAD CAVILI, AQUILINA CAVILI, CRESENCIO CAVILI, ALMA
CAVILI, ET AL., respondents.
No. L-57771 October 9, 1987
QUIRINO CAVILI, PRIMITIVO, CAVILI, and PERFECTA CAVILI, petitioners,
vs.
HON. CIPRIANO VAMENTA, JR., as Presiding Judge, Branch III Court of First Instance of Negros Oriental;
ULPIANO CAVILI, CLARITA CAVILI, ESTRELLA CAVILI, RAMONA TAKANG COSME TAKANG FABIAN
TAKANG, LEODEGARIO TAKANG ET AL., respondents.

Meanwhile, 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.
The defendants, however, failed to file their answer within the request period and upon motion of the plaintiffs,
the defendants were declared in default, and on October 5, 1979, a judgment by default was promulgated by
Judge Augusto S. Villarin.
The records of the case, however, show that a Manifestation was filed by Atty. Jose P. Alamino informing the
court that since he never met Primitivo and Quirino Cavili, who are residents of another province, he desisted
from further appearing in the case in their behalf.
On November 7, 1979, Atty. Jose P. Alamillo received a copy of the decision. On December 7, 1979, he filed a
motion for new trial in behalf of the defendants 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 late Bernardo Cavili who are the predecessors of the parties in this case. In/an
order dated April 23, 1980, the court granted said motion.
The plaintiffs filed a motion for reconsideration of the order granting new trial and at the same time prayed that a
writ of execution be issued but only in so far as defendant Perfecta Cavili was concerned.
In an order dated July 21, 1981, Judge Cipriano Vamenta of Branch III of the Court of First Instance of Negros
Oriental to whom the case had been assigned after a re-raffle, set aside the order of April 23, 1980 and directed
the execution of the October 5, 1979 decision without qualification ruling that the petitioners' remedy should have
been appeal rather than new trial.

GUTIERREZ, JR., J.:


This is a petition to review and set aside two orders of the then Court of First Instance of Negros Oriental,
namely: (1) the order dated October 11, 1985, disqualifying Perfects Cavili dela Cruz as a witness in Civil Case
No. 6880 entitled "Clarita Cavili, et al. v. Perfecta Cavili, Quirino Cavili, and Primitivo Cavili" and (2) the order
dated November 26, 1985, refusing to reconsider the previous orders of disqualification and resetting the
reception of evidence for the defendants to December 19 and 20, 1985 with a warning that should defendants'
witnesses fail to appear in court on said date, they will be deemed to have waived their right to be witnesses in
this case.
The private respondents filed Civil Case No. 6880 with the Court of First Instance of Negros Oriental against
herein petitioners for Partition, Accounting, and Damages. After the case was raffled to Branch I presided over by
Judge Augusto S. Villarin, summons was issued to the three petitioners, all at Bayawan Negros Oriental which
was the address indicated in the complaint.
After trying to effect service, the process server went back to the court with the following return of service to
Quirino and Primitivo Cavili not contacted, according to Perfecta Cavili, subject persons is (sic) staying in
Kabangkalan, Negros Occidental."

Their motion for reconsideration having been denied on August 11, 1981, the defendants, now petitioners,
brought the case to this Court through a petition for certiorari, G.R. No. 57771, entitled "Quirino Cavili, et al.,
Petitioners vs. Hon. Cipriano Vamenta, et al., Respondents "
On May 31, 1982, this Court rendered a decision, the dispositive portion of which reads:
WHEREFORE, Our resolution dismissing the petition is hereby reconsidered; the petition is
granted; and the order dated July 21, 1981, is set aside while that of April 23, 1980, is revived. (No
special pronouncement as to costs. Rollo p. 21)
Thereafter, the pre-trial and trial of Civil Case No. 6880 was scheduled on October 9, 10, and 11, 1985 before
Branch XXXVI of the Regional Trial Court, presided by respondent Judge Teodoro N. Florendo. The defendants,
(now petitioners), presented Perfects Cavili dela Cruz as their first witness. The respondents, through counsel
moved for her disqualification as a witness on the ground that having been declared in default, Perfects Cavili
has lost her standing in court and she cannot be allowed to participate in all premise the even as a witness. The
court, through the respondent judge, sustained the respondents' contention and disqualified her from testifying.
The petitioners, through counsel, moved for a reconsideration of the ruling.

On November 26, 1985, the lower court issued an order denying reconsideration of its Order dated October 11,
1985 disqualifying Perfecta Cavili dela Cruz as a witness in Civil Case No. 6880.
Hence, this petition.
Petitioner Perfecta Cavili's competence as a witness is put in issue by the private respondents.
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.
The generosity with which the Rule allows people to testify is apparent. Interest in the outcome of a case,
conviction of a crime unless otherwise provided by law, and religious belief are not grounds for disqualification.
Sections 19 and 20 of Rule 130 provide for specific disqualifications. Section 19 disqualifies those who are
mentally incapacitated and children whose tender age or immaturity renders them incapable of being witnesses.
Section 20 provides for disqualification based on conflicts of interest or on relationship. Section 21 provides for
disqualifications based on privileged communications. Section 15 of Rule 132 may not be a rule on
disqualification of witnesses but it states the grounds when a witness may be impeached by the party against
whom he was called.
There is no provision of the Rules disqualifying parties declared in default from taking the witness stand for nondisqualified parties. The law does not provide default as an exception. The specific enumeration of disqualified
witnesses excludes the operation of causes of disability other than those mentioned in the Rules. It is a maxim of
recognized utility and merit in the construction of statutes that an express exception, exemption, or saving clause
excludes other exceptions. (In Re Estate of Enriquez, 29 Phil. 167) 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. (Sutherland on Statutory Construction, Fourth Edition, Vol. 2A, p. 90) The Rules should not be
interpreted to include an exception not embodied therein.
The respondents, however, cite Section 2, Rule 18 on Defaults, to wit:
Section 2. Effect of order of default. Except as provided in section 9 of Rule 13, a party declared in default
shall not be entitled to notice of subsequent proceedings nor to take part in the trial.
They advance the argument that to allow Perfecta Cavili to stand as witness would be to permit a party in default
"to take part in the trial."
An explanation of the Rule is in order.
Loss of standing in court is the consequence of an order of default. Thus, a party declared in default is
considered out of court and cannot appear therein, adduce evidence, and be heard and for that reason he is not

entitled to notice. (Rule 18, Rules of Court; Lim Toco v. Go Fay, 80 Phil. 166) However, "loss of pending" must be
understood to mean only the forfeiture of one's rights as a party litigant, contestant or legal adversary. A party in
default loses his right to present his defense, control the proceedings, and examine or cross-examine witnesses.
He has no right to expect that his pleadings would be acted upon by the court nor may he object to or refute
evidence or motions filed against him. There is nothing in the rule, however, which contemplates a
disqualification to be a witness or a 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. Cast in the cited role of witness, a party in default cannot be considered as " a part in the trial." He
remains suffering the effects of an order of default.
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. The incidental benefit giving the party in default the opportunity
to present evidence which may eventually redound to his advantage or bring about a desired result, through his
co-defendants, is of minor consequence.
Of greater concern or importance in allowing the presence of Perfecta Cavili as a witness in the case at bar, is
the preservation of the right of petitioners Quirino and Primitivo Cavili to secure the attendance of witnesses and
the production of evidence in their behalf. To reject Perfects Cavili's presentation of testimonial evidence would
be to treat Primitivo and Quirino, as if they too were in default. There is no reason why the latter should also be
made to bear the consequences of Perfecta's omission. Moreover, we cannot deprive Quirino and Primitivo of
the only instrument of proof available to them, as Perfecta alone has been in possession and administration of
the claim.
WHEREFORE, in view of the foregoing, the petition is hereby GRANTED. The order of the respondent court
disqualifying. Perfects Cavili dela Cruz as a witness in Civil Case No. 6880 is hereby SET ASIDE. The case is
remanded to the court a quo for Wither proceedings. The temporary restraining order issued on January 6, 1986
is LIFTED.
SO ORDERED.

Case 6
G.R. No. L-53880 March 17, 1994
ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE, EVELINA C. PACETE and
EDUARDO C. PACETE, petitioners,
vs.
HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA) ALANIS PACETE, respondents.
Juan G. Sibug and Rodolfo B. Quiachon for petitioners.

Julio F. Andres, Jr. for private respondent.

1. The issuance of a Decree of Legal Separation of the marriage between, the plaintiff, Concepcion
(Conchita) Alanis Pacete and the herein defendants, Enrico L. Pacete, in accordance with the
Philippine laws and with consequences, as provided for by our laws;

VITUG, J.:

2. That the following properties are hereby declared as the conjugal properties of the partnership of
the plaintiff, Concepcion (Conchita) Alanis Pacete and the defendant, Enrico L. Pacete, half and
half, to wit:

The issue in this petition for certiorari is whether or not the Court of First Instance (now Regional Trial Court) of
Cotabato, Branch I, in Cotabato City, gravely abused its discretion in denyingpetitioners' motion for extension of
time to file their answer in Civil Case No. 2518, in declaringpetitioners in default and in rendering its decision of
17 March 1980 which, among other things, decreed the legal separation of petitioner Enrico L. Pacete and
private respondent Concepcion Alanis and held to be null and void ab initio the marriage of Enrico L. Pacete to
Clarita de la Concepcion.

1. The parcel of land covered by TCT No. V-815 which is a parcel of land situated in the barrio of
Langcong, Municipality of Matanog (previously of Parang), province of Maguindanao (previously of
Cotabato province) with an area of 45,265 square meters registered in the name of Enrico Pacete,
Filipino, of legal age, married to Conchita Alanis as shown in Exhibits "B" and "B-1" for the plaintiff.

On 29 October 1979, Concepcion Alanis filed with the court below a complaint for the declaration of nullity of the
marriage between her erstwhile husband Enrico L. Pacete and one Clarita de la Concepcion, as well as for legal
separation (between Alanis and Pacete), accounting and separation of property. In her complaint, she averred
that she was married to Pacete on 30 April 1938 before the Justice of the Peace of Cotabato, Cotabato; that they
had a child named Consuelo who was born on 11 March 1943; that Pacete subsequently contracted (in 1948) a
second marriage with Clarita de la Concepcion in Kidapawan, North Cotabato; that she learned of such marriage
only on 01 August 1979; that during her marriage to Pacete, the latter acquired vast property consisting of large
tracts of land, fishponds and several motor vehicles; that he fraudulently placed the several pieces of property
either in his name and Clarita or in the names of his children with Clarita and other "dummies;" that Pacete
ignored overtures for an amicable settlement; and that reconciliation between her and Pacete was impossible
since he evidently preferred to continue living with Clarita.

2. A parcel of land covered by Transfer Certificate of Title No. T-20442, with an area of 538 square
meters and covered by Tax Declaration No. 2650 (74) in the name of Enrico Pacete, situated in the
Poblacion of Kidapawan, North Cotabato, together with all its improvements, which parcel of land,
as shown by Exhibits "K-1" was acquired by way of absolute deed of sale executed by Amrosio
Mondog on January 14, 1965.

The defendants were each served with summons on 15 November 1979. They filed a motion for an extension of
twenty (20) days from 30 November 1979 within which to file an answer. The court granted the motion. On 18
December 1979, appearing through a new counsel, the defendants filed a second motion for an extension of
another thirty (30) days from 20 December 1979. On 07 January 1980, the lower court granted the motion but
only for twenty (20) days to be counted from 20 December 1979 or until 09 January 1980. The Order of the court
was mailed to defendants' counsel on 11 January 1980. Likely still unaware of the court order, the defendants, on
05 February 1980, again filed another motion (dated 18 January 1980) for an extension of "fifteen (15) days
counted from the expiration of the 30-day period previously sought" within which to file an answer. The following
day, or on 06 February 1980, the court denied this last motion on the ground that it was "filed after the original
period given . . . as first extension had expired." 1

4. A parcel of land situated at Lanao, Kidapawan, North Cotabato, with an area of 5.0567 hectares,
covered by Tax Declaration No. 4332 (74), as shown by Exhibit "S", and registered in the name of
Enrico Pacete.

The plaintiff thereupon filed a motion to declare the defendants in default, which the court forthwith granted. The
plaintiff was then directed to present her evidence. 2 The court received plaintiff's evidence during the hearings
held on 15, 20, 21 and 22 February 1980.
On 17 March 1980, the court 3 promulgated the herein questioned decision, disposing of the case, thus
WHEREFORE, order is hereby issued ordering:

3. A parcel of land covered by Transfer Certificate of Title No. T-20424 and covered by Tax
Declaration No. 803 (74), with an area of 5.1670 hectares, more or less, as shown by Exhibit "R",
the same was registered in the name of Enrico Pacete and the same was acquired by Enrico
Pacete last February 17, 1967 from Ambag Ampoy, as shown by Exhibit "R-1", situated at Musan,
Kidapawan, North Cotabato.

5. A parcel of land covered by Transfer Certificate of Title No. T-9750, situated at Lika, Mlang, North
Cotabato, with an area of 4.9841 hectares and the same is covered by Tax Declaration No. 803
(74) and registered in the name of Enrico Pacete and which land was acquired by Enrico Pacete
from Salvador Pacete on September 24, 1962, as shown by Exhibit "Q-1".
6. A parcel of land covered by Transfer Certificate of Title No. T-9944, with an area of 9.9566 and
also covered by Tax Declaration No. 8608 (74) and registered in the name of the defendant Enrico
L. Pacete which Enrico L. Pacete acquired from Sancho Balingcos last October 22, 1962, as shown
by Exhibit "L-1" and which parcel of land is situated at (Kialab), Kiab, Matalam, North Cotabato.
7. A parcel of land covered by Transfer Certificate of Title No. T-9227, situated at Kiab, Matalam,
North Cotabato, with an area of 12.04339 hectares, more or less, and also covered by Tax
Declaration No. 8607 (74) both in the name of the defendant Enrico L. Pacete which he acquired
last October 15, 1962 from Minda Bernardino, as shown by Exhibit "M-1".
8. A parcel of land covered by Transfer Certificate of Title No. T-9228, situated at Kiab, Matalam,
North Cotabato, with an area of 10.8908 hectares, registered in the name of Enrico Pacete and

also covered by Tax Declaration No. 5781 (74) in the name of Enrico Pacete and which parcel of
land he acquired last September 25, 1962 from Conchita dela Torre, as shown by Exhibit "P-1".

d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No. F70MU5-11111; Chassis No.
HOCC-GPW-1161188-G; Type, Stake;

9. A parcel of land covered by Transfer Certificate of Title No. T-10301, situated at Linao, Matalam,
North Cotabato, with an area of 7.2547 hectares, registered in the name of Enrico Pacete and also
covered by Tax Declaration No. 8716 (74) also in the name of Enrico Pacete which Enrico Pacete
acquired from Agustin Bijo last July 16, 1963, as shown by Exhibit "N-1".

e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No. ED300-45758; Chassis No.
KB222-22044; Type, Stake; and

10. A parcel of land covered by Transfer Certificate of Title No. 12728 in the name of the defendant,
Enrico L. Pacete, with an area of 10.9006 hectares, situated at Linao, Matalam, North Cotabato
and is also covered by Tax Declaration No. 5745 (74) in the name of Enrico Pacete, as shown on
Exhibit "O" and which Enrico Pacete acquired last December 31, 1963 from Eliseo Pugni, as shown
on Exhibit "0-1".
3. Ordering the Cancellation of Original Certificate of Title No. P-34243 covering Lot No. 1066,
issued in the name of Evelina Pacete, situated at Kiab, Matalam, North Cotabato, and ordering the
registration of the same in the joint name of Concepcion (Conchita) Alanis Pacete and Enrico L.
Pacete as their conjugal property, with address on the part of Concepcion (Conchita) Alanis Pacete
at Parang, Maguindanao and on the part of Enrico L. Pacete at Kidapawan, North Cotabato.
4. Ordering likewise the cancellation of Original Certificate of Title No. V-20101, covering Lot No.
77, in the name of Eduardo C. Pacete, situated at New Lawaan, Mlang, North Cotabato, and the
issuance of a new Transfer Certificate of Title in the joint name of (half and half) Concepcion
(Conchita) Alanis Pacete and Enrico L. Pacete.
5. Ordering likewise the cancellation of Original Certificate of Title No. P-29890, covering Lot 1068,
situated at Kiab, Matalam, North Cotabato, with an area of 12.1031 hectares, in the name of
Emelda C. Pacete and the issuance of a new Transfer Certificate of Title in the joint name (half and
half) of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete; and declaring that the fishpond
situated at Barrio Tumanan, Bislig, Surigao Del Sur, with an area of 48 hectares and covered by
Fishpond Lease Agreement of Emelda C. Pacete, dated July 29, 1977 be cancelled and in lieu
thereof, the joint name of Concepcion (Conchita) Alanis Pacete and her husband, Enrico L. Pacete,
be registered as their joint property, including the 50 hectares fishpond situated in the same place,
Barrio Timanan, Bislig, Surigao del Sur.
6. Ordering the following motor vehicles to be the joint properties of the conjugal partnership of
Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete, viz:
a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor No. T137-20561; Chassis
No. 83920393, and Type, Mcarrier;
b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor No. T214-229547; Chassis No.
10D-1302-C; and Type, Mcarrier;
c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No. GRW-116188; Chassis No.
HOCC-GPW-1161-88-C; Type, Jeep;

f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No. LTC-780-Dv; Chassis No. 10F13582-K; Type, Stake.
7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the sum of P46,950.00 which is the
share of the plaintiff in the unaccounted income of the ricemill and corn sheller for three years from
1971 to 1973.
8. Ordering the defendant, Enrico L. Pacete, to reimburse the plaintiff the monetary equipment of
30% of whether the plaintiff has recovered as attorney's fees;
9. Declaring the subsequent marriage between defendant Enrico L. Pacete and Clarita de la
Concepcion to be void ab initio; and
10. Ordering the defendants to pay the costs of this suit. 4
Hence, the instant special civil action of certiorari.
Under ordinary circumstances, the petition would have outrightly been dismissed, for, as also pointed out by
private respondents, the proper remedy of petitioners should have instead been either to appeal from the
judgment by default or to file a petition for relief from judgment. 5 This rule, however, is not inflexible; a petition
for certiorari is allowed when the default order is improperly declared, or even when it isproperly declared, where
grave abuse of discretion attended such declaration. 6 In these exceptional instances, the special civil action
of certiorari to declare the nullity of a judgment by default is available. 7 In the case at bench, the default order
unquestionably is not legally sanctioned. The Civil Code provides:
Art. 101. No decree of legal separation shall be promulgated upon a stipulation of facts or by
confession of judgment.
In case of non-appearance of the defendant, the court shall order the prosecuting attorney to
inquire whether or not a collusion between the parties exists. If there is no collusion, the
prosecuting attorney shall intervene for the State in order to take care that the evidence for the
plaintiff is not fabricated.
The provision has been taken from Article 30 of the California Civil Code, 8 and it is, in substance, reproduced in
Article 60 of the Family Code. 9
Article 101 reflects the public policy on marriages, and it should easily explain the mandatory tenor of the law.
In Brown v. Yambao, 10 the Court has observed:

The policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys in
case of uncontested proceedings for legal separation (and of annulment of marriages, under Article
88), is to emphasize that marriage is more than a mere contract; that it is a social institution in
which the state is vitally interested, so that its continuation or interruption can not be made to
depend upon the parties themselves (Civil Code, Article 52; Adong vs. Cheong Gee, 43 Phil. 43;
Ramirez v. Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil. 252). It is consonant with this policy that
the inquiry by the Fiscal should be allowed to focus upon any relevant matter that may indicate
whether the proceedings for separation or annulment are fully justified or not.
Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates that an action for legal
separation must "in no case be tried before six months shall have elapsed since the filing of the petition,"
obviously in order to provide the parties a "cooling-off" period. In this interim, the court should take steps toward
getting the parties to reconcile.
The significance of the above substantive provisions of the law is further underscored by the inclusion of the
following provision in Rule 18 of the Rules of Court:
Sec. 6. No defaults in actions for annulments of marriage or for legal separation. If the defendant
in an action for annulment of marriage or for legal separation fails to answer, the court shall order
the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if
there is no collusion, to intervene for the State in order to see to it that the evidence submitted is
not fabricated.
The special prescriptions on actions that can put the integrity of marriage to possible jeopardy are impelled by no
less than the State's interest in the marriage relation and its avowed intention not to leave the matter within the
exclusive domain and the vagaries of the parties to alone dictate.
It is clear that the petitioner did, in fact, specifically pray for legal separation. 11 That other remedies, whether
principal or incidental, have likewise been sought in the same action cannot dispense, nor excuse compliance,
with any of the statutory requirements aforequoted.
WHEREFORE, the petition for certiorari is hereby GRANTED and the proceedings below, including the Decision
of 17 March 1980 appealed from, are NULLIFIED and SET ASIDE. No costs.SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.
Case 7G.R. No. 101789. April 28, 1993.
BHAGWAN RAMNANI, petitioner, vs.
COURT OF APPEALS, HON. BUENAVENTURA J. GUERRERO, as Regional Trial Court Judge of Makati, Metro
Manila, Branch 133, SPOUSES CENON G. DIZON and JULIETTE B. DIZON, respondents.
Bernardo D. Calderon for petitioner. Zosimo Cuasay for private respondent.
SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; PRE-TRIAL; FAILURE TO APPEAR AT PRE-TRIAL CONFERENCE;


REMEDIES AVAILABLE. The basic rule is found in Section 2, Rule 20, viz: "A party who fails to appear at a
pre-trial conference may be non-suited or considered as in default." As held in Lina v. Court of Appeals, the
remedies available to a defendant in the regional trial court who has been declared in default are: a) The
defendant in default may, at any time after discovery thereof and before judgment, file a motion, under oath, to
set aside the order of default on the ground that his failure to answer was due to fraud, accident, mistake or
excusable neglect, and that he has a meritorious defense; (Sec. 3, Rule 18) b) If the judgment has already been
rendered when the defendant discovered the default, but before the same has become final and executory, he
may file a motion for new trial under Section 1(a) of Rule 37; c) If the defendant discovered the default after the
judgment has become final and executory, he may file a petition for relief under Section 2 of Rule 38; and d) He
may also appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no
petition to set aside the order of default has been presented by him.
2. ID.; ID.; DEFAULTS; RELIEF FROM ORDER OF DEFAULT; REQUIREMENTS; NOT SATISFIED IN CASE AT
BAR. A satisfactory showing by the movant of the existence of fraud, accident, mistake or excusable neglect is
an indispensable requirement for the setting aside of a judgment of default or the order of default. After going
over the pleadings of the parties and the decision of the respondent court, we find that the motion to lift the order
of default was properly denied for non-compliance with this requirement. The defendants were less than
conscientious in defending themselves and protecting their rights before the trial court. They did not pay proper
attention and respect to its directive. The petitioner has not shown that his and his wife's failure to attend the pretrial hearing as required was due to excusable neglect, much less to fraud, accident or mistake. A meritorious
defense is only one of the two conditions. Even if it be assumed for the sake of argument that the private
respondents did owe Josephine Ramnani P900,000, as alleged in the counterclaim, that circumstance alone is
not sufficient to justify the lifting of the order of default and the default judgment. The obvious reason is that a
meritorious defense must concur with the satisfactory reason for the non-appearance of the defaulted party.
There is no such reason in this case.
3. ID.; ID.; ORDINARY APPEAL; APPROPRIATE REMEDY IN CASE AT BAR; CASE OF PISC VS.
HONTANOSAS, NOT APPLICABLE. The appropriate remedy is an ordinary appeal under Section 2 of Rule
41 of the Rules of Court providing in part as follows: A party who has been declared in default may likewise
appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition for
relief to set aside the order of default has been presented by him in accordance with Rule 38. In questioning the
dismissal of its petition by the respondent court, the petitioner invokes the case of Pioneer Insurance and Surety
Corporation v. Hontanosas, (78 SCRA 447) where the Court sustained the challenge to an order of default in a
petition for certiorari rather than in an ordinary appeal, which was held as not an adequate remedy. That case is
not applicable to the present petition. Certiorari was allowed in that case because the petitioner was illegally
declared in default. The Court held that, first, the petitioner could not be compelled to attend an unnecessary
second pre-trial after it had indicated at the earlier pre-trial that there was no possibility of an amicable
settlement; second, the pre-trial was premature because the last pleading had not yet been filed at the time; and
third, there was insufficient notice of the pre-trial to the petitioner. In the case at bar, no such irregularities in the
pre-trial have been alleged by the petitioner.
4. ID.; SPECIAL CIVIL ACTION; CERTIORARI; WHEN APPROPRIATE; RATIONALE. As we held in Pure
Foods Corporation v. NLRC (171 SCRA 415): It must emphatically be reiterated, since so often is it overlooked,
that the special civil action for certiorari is a remedy designed for the correction of errors of jurisdiction and not
errors of judgment. The reason for the rule is simple. When a court exercises its jurisdiction, an error committed
while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. If it did,

every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a
void judgment. This cannot be allowed. The administration of justice would not survive such a rule.
Consequently, an error of judgment that the court may commit in the exercise of its jurisdiction is not correctible
through the original civil action of certiorari.
5. ID.; ID.; ID.; NOT PROPER ABSENT SHOWING OF GRAVE ABUSE OF DISCRETION. Even on the
supposition that certiorari was an appropriate remedy, the petition would still fail because it has not been clearly
shown that the trial court committed grave abuse of discretion in refusing to set aside the default order and the
default judgment. We have held in many cases, including Pahilanga v. Luna, (164 SCRA 725) that: It is within the
sound discretion of the court to set aside an order of default and to permit a defendant to file his answer and to
be heard on the merits even after the reglementary period for the filing of the answer has expired, but it is not
error, or an abuse of discretion, on the part of the court to refuse to set aside its order of default and to refuse to
accept the answer where it finds no justifiable reason for the delay in the filing of the answer. In motions for
reconsideration of an order of default, the moving party has the burden of showing such diligence as would justify
his being excused from not filing the answer within the reglementary period as provided by the Rules of Court,
otherwise, these guidelines for an orderly and expeditious procedure would be rendered meaningless. Unless it
is shown clearly that a party has justifiable reason for the delay the court will not ordinarily exercise its discretion
in his favor. The above doctrine is applicable to the inexcusable neglect of the herein petitioner and his wife to
appear at the pre-trial hearing duly scheduled and of which they were properly notified.

them liable to the plaintiffs in the amounts of P884,347.00, representing the principal obligation plus legal interest
thereon from March 13, 1990, until fully paid; P100,000.00 as moral damages; and P20,000.00 as exemplary
damages. They were also required to pay P50,000.00 as attorney's fees, and the costs of the suit.
The Ramnanis filed a motion for reconsideration on the ground that a "personal obligation contracted by the wife
without the consent of the husband (was) being made enforceable against the spouses' conjugal partnership
despite absence of any allegation and proof that the same redounded to the benefit of the family as required by
Article 121 of the Family Code." 7 The motion was denied on April 11, 1991.
On April 29, 1991, Bhagwan Ramnani filed a petition for certiorari before the respondent Court of Appeals
imputing error to the trial court:
(1) in denying the motion to lift order declaring petitioner as in default despite a clear showing of a meritorious
defense;
(2) in not considering petitioner's reason for failure to attend pre-trial as excusable neglect.
In a decision dated May 10, 1991, the Court of Appeals dismissed the petition, holding that certiorari was not the
proper remedy. 9

DECISION
The respondent court said:
CRUZ, J p:
On March 13, 1990, the spouses Juliette Dizon and Cenen Dizon filed a complaint in the Regional Trial Court of
Makati against the spouses Josephine Anne Ramnani and Bhagwan Ramnani for the collection of a sum of
money representing the alleged unremitted value of jewelry received by Josephine from Juliette on consignment
basis.
Josephine Ramnani submitted an answer with counterclaim 2 in which she alleged inter alia:
(a) That although she did receive pieces of jewelry worth P934,347.00 from Dizon, the latter had likewise
received from her jewelries worth P1,671,842,00, including cash and unpaid checks in the amount of
P159,742.50;
(b) That she paid Dizon P50,000; and

Petitioners alleged that the respondent court erred and committed grave abuse of discretion and/or acted in
excess of jurisdiction in assigning its Branch Clerk of Court as the hearing commissioner for the purpose of the
ex parte reception of plaintiffs' evidence (par. 19, Petition); that the questioned Decision failed to specify whether
defendants are solidarily or only jointly liable (par. 20, Petition); and that petitioner had a valid and meritorious
defense (par. 21, Petition). These are matters that could very well be ventilated in an ordinary appeal. It should
be stressed that the writ of certiorari issues for the correction of errors of jurisdiction only or grave abuse of
discretion amounting to lack or excess of jurisdiction. It cannot be legally used for any other purpose (Silverio vs.
Court of Appeals, 141 SCRA 527). Mere error of judgment cannot be a proper subject of the special civil action
for certiorari (Zapata vs. NLRC, 175 SCRA 56). Further, it is a settled rule that certiorari cannot be made a
substitute for an perform the function of an appeal (People vs. Cuaresma, 172 SCRA 415).
The petitioner has come to this Court to challenge that decision. He avers that the Court of Appeals erred in
upholding the refusal of the trial court to set aside the order of default and the default judgment thereafter issued.

(c) That Dizon still owes her P787,495.00;

The basic rule is found in Section 2, Rule 20, viz: "A party who fails to appear at a pre-trial conference may be
non-suited or considered as in default."

The trial court set the case for pre-trial on August 14, 1990, 3 but the Ramnanis did not appear.Consequently,
they were declared in default. 4 On September 12, 1990, they filed a motion to lift the order of default, but this
was denied on November 20, 1990.

As held in Lina v. Court of Appeals, 10 the remedies available to a defendant in the regional trial court who has
been declared in default are:

On October 26, 1990, conformably to the default order, evidence of the Dizon spouses was received ex parte.
On January 28, 1991, Judge Buenaventura J. Guerrero rendered judgment against the Ramnanis, holding

a) The defendant in default may, at any time after discovery thereof and before judgment, file a motion, under
oath, to set aside the order of default on the ground that his failure to answer was due to fraud, accident, mistake
or excusable neglect, and that he has a meritorious defense; (Sec. 3, Rule 18)

b) If the judgment has already been rendered when the defendant discovered the default, but before the same
has become final and executory, he may file a motion for new trial under Section 1(a) of Rule 37;
c) If the defendant discovered the default after the judgment has become final and executory, he may file a
petition for relief under Section 2 of Rule 38; and
d) He may also appeal from the judgment rendered against him as contrary to the evidence or to the law, even if
no petition to set aside the order of default has been presented by him. (Sec. 2, Rule 41)
The first remedy was adopted by the petitioner but his motion to lift the order of default was denied. According to
the trial court:
Defendants' non-appearance is inexcusable. It is unbelievable their former lawyer did not explain to them the
mandatory character of their appearance. Their invocation of the deteriorating health of defendant Josephine
necessitating her trip abroad for appropriate medical treatment, is unavailing. There is no medical certificate to
attest such illness. Besides, at the time of the hearing of the motion on October 19, 1990, counsel for the
defendants admitted that Josephine had not yet arrived from the States, despite their averment in their motion
she would "only be back late September or early October of this year." This only indicates her light regard of her
duty to appear in court. Moreover, the other defendant Bhagwan Ramnani did not submit any other plausible
explanation for his absence in the pre-trial.
A satisfactory showing by the movant of the existence of fraud, accident, mistake or excusable neglect is an
indispensable requirement for the setting aside of a judgment of default or the order of default. After going over
the pleadings of the parties and the decision of the respondent court, we find that the motion to lift the order of
default was properly denied for non-compliance with this requirement.
The defendants were less than conscientious in defending themselves and protecting their rights before the trial
court. They did not pay proper attention and respect to its directive. The petitioner has not shown that his and his
wife's failure to attend the pre-trial hearing as required was due to excusable neglect, much less to fraud,
accident or mistake.
The petitioner insists, however, that they had a meritorious defense which the trial court should not have
disregarded. A meritorious defense is only one of the two conditions. Even if it be assumed for the sake of
argument that the private respondents did owe Josephine Ramnani P900,000, as alleged in the counterclaim,
that circumstance alone is not sufficient to justify the lifting of the order of default and the default judgment. The
obvious reason is that a meritorious defense must concur with the satisfactory reason for the non-appearance of
the defaulted party. There is no such reason in this case.

In questioning the dismissal of its petition by the respondent court, the petitioner invokes the case of Pioneer
Insurance and Surety Corporation v. Hontanosas, 11 where the Court sustained the challenge to an order of
default in a petition for certiorari rather than in an ordinary appeal, which was held as not an adequate remedy.
That case is not applicable to the present petition. Certiorari was allowed in that case because the petitioner was
illegally declared in default. The Court held that, first, the petitioner could not be compelled to attend an
unnecessary second pre-trial after it had indicated at the earlier pre-trial that there was no possibility of an
amicable settlement; second, the pre-trial was premature because the last pleading had not yet been filed at the
time; and third, there was insufficient notice of the pre-trial to the petitioner. In the case at bar, no such
irregularities in the pre-trial have been alleged by the petitioner.
As we held in Pure Foods Corporation v. NLRC:
It must emphatically be reiterated, since so often is it overlooked, that the special civil action for certiorari is a
remedy designed for the correction of errors of jurisdiction and not errors of judgment. The reason for the rule is
simple. When a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the
jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive
it of its jurisdiction and every erroneous judgment would be a void judgment. This cannot be allowed. The
administration of justice would not survive such a rule. Consequently, an error of judgment that the court may
commit in the exercise of its jurisdiction is not correctible through the original civil action of certiorari.
Even on the supposition that certiorari was an appropriate remedy, the petition would still fail because it has not
been clearly shown that the trial court committed grave abuse of discretion in refusing to set aside the default
order and the default judgment. We have held in many cases, including Pahilanga v. Luna, 13 that:
It is within the sound discretion of the court to set aside an order of default and to permit a defendant to file his
answer and to be heard on the merits even after the reglementary period for the filing of the answer has expired,
but it is not error, or an abuse of discretion, on the part of the court to refuse to set aside its order of default and
to refuse to accept the answer where it finds no justifiable reason for the delay in the filing of the answer. In
motions for reconsideration of an order of default, the moving party has the burden of showing such diligence as
would justify his being excused from not filing the answer within the reglementary period as provided by the
Rules of Court, otherwise, these guidelines for an orderly and expeditious procedure would be rendered
meaningless. Unless it is shown clearly that a party has justifiable reason for the delay the court will not ordinarily
exercise its discretion in his favor.
The above doctrine is applicable to the inexcusable neglect of the herein petitioner and his wife to appear at the
pre-trial hearing duly scheduled and of which they were properly notified.

The appropriate remedy is an ordinary appeal under Section 2 of Rule 41 of the Rules of Court providing in part
as follows:

We must, however, moderate the award of damages by the trial court as we feel it is rather harsh upon the
petitioner. In the exercise of our discretion, we hereby reduce the moral damages to P20,000.00 and the
attorney's fees to P10,000.00, and disallow the exemplary damages. The rest of the award is approved.

A party who has been declared in default may likewise appeal from the judgment rendered against him as
contrary to the evidence or to the law, even if no petition for relief to set aside the order of default has been
presented by him in accordance with Rule 38.

WHEREFORE, the challenged decision is AFFIRMED as above modified, with costs against the petitioner. It is
so ordered.