ULPIANO CAVILI, ESTRELLA

CAVILI, PLACIDA CAVILI,

GREGORIA CAVILI, FORTUNATA
CAVILI. AMILITA CAVILI, APAD
CAVILI, AQUILINA CAVILI,
CRESENCIO CAVILI, ALMA
CAVILI, ET AL., respondents.
610 SUPREME COURT REPORTS
ANNOTATED *
No. L-57771. October 9,1987.
Cavili vs. Florendo
* QUIRINO CAVILI, PRIMITIVO,
No. L-73039. October 9,1987. CAVILI, and PERFECTA CAVILI,
petitioners, vs. HON. CIPRIANO
PERFECTA CAVILI, PRIMITIVO VAMENTA, JR., as Presiding Judge,
CAVILI and QUIRINO CAVILI, Branch III, Court of First Instance of
petitioners, vs. HON. TEODORO N.
FLORENDO, Presiding Judge, Branch
XXXVI, Regional Trial Court of Negros _______________
Oriental, 7th Judicial Region, * THIRD DIVISION.
CLARITA GAVILI, ULPIANO
CAVILI, ESTRELLA CAVILI, 611
PLACIDA CAVILI, ET AL.,
respondents.
VOL. 154, OCTOBER 9, 1987 611
*
No. L-68680. October 9,1987. Cavili vs. Florendo

PERFECTA CAVILI, PRIMITIVO

CAVILI and QUIRINO CAVILI, Negros Oriental; ULPIANO CAVILI,
petitioners, vs. HON. TEODORO N. CLARITA CAVILI, ESTRELLA
FLORENDO, Presiding Judge, Branch CAVILI, RAMONA TAKANG,
XXXVI, Regional Trial Court, 7th COSME TAKANG, FABIAN
Judicial Region, CLARITA CAVILI,
TAKANG, LEODEGARIO TAKANG, interpreted to include an exception not
ET AL., respondents. embodied therein.
Same; Same; Same; Same; Civil
Remedial Law; Special Proceedings; Procedure; Default; Loss of standing in
Disqualification of witnesses; court is the consequence of an order of
Interpretation; Absence of provision in the default; "Loss of standing," interpreted;
Rules disqualifying parties declared in Absence of provision in the Rule which
default from taking the witness stand for contemplates a disqualification to be a
non-disqualified parties; The specific witness or a deponent in a case; Default
enumeration of disqualifted witnesses does not make him incompetent—Loss of
excludes the operation of causes of disability standing in court is the consequence of an
other than those mentioned in the Rules.— order of default. Thus, a party declared in
There is no provision of the Rules default is considered out of court and cannot
disqualifying parties declared in default appear therein, adduce evidence, and be
from taking the witness stand for non- heard and for that reason he is not entitled
disqualified parties. The law does not to notice. (Rule 18, Rules of Court; Lim Toco
provide default as an exception. The specific v. Go Fay, 80 Phil. 166) However, "loss of
enumeration of disqualified witnesses standing" must be understood to mean only
excludes the operation of causes of disability the forfeiture of one's rights as a party
other than those mentioned in the Rules, It litigant, contestant or legal adversary. A
is a maxim of recognized utility and merit in party in default loses his right to present his
the construction of statutes that an express defense, control the proceedings, and
exception, exemption, or saving clause examine or cross-examine witnesses. He has
excludes other exceptions. (In Re Estate of no right to expect that his pleadings would
Enriquez, 29 Phil. 167) As a general rule, be acted upon by the court nor may he
where there are express exceptions these object to or refute evidence or motions filed
comprise the only limitations on the against him. There is nothing in the rule,
operation of a statute and no other however, which contemplates a
exception will be implied. (Sutherland on disqualification to be a witness or a
Statutory Construction, Fourth Edition, Vol. deponent in a case. Default does not make
2A, p. 90) The Rules should not be him an incompetent.
 their claim.—Of greater concern or
612 importance in allowing the presence of
Perfecta Cavili as a witness in the case at
bar, is the preservation of the right of
612 SUPREME COURT REPORTS
petitioners Quirino and Primitivo Cavili to
ANNOTATED
secure the attendance of witnesses and the
Cavili vs. Florendo production of evidence in their behalf. To
reject Perfecta Cavili's presentation of
Same; Same; Same; Same; Same; Same; testimonial evidence would be to treat
As opposed to a party litigant, a witness Primitivo and Quirino as if they too were in
takes no active part in the contest of rights default. There is no reason why the latter
between the parties; A party in default does should also be made to bear the
not take part in the trial—As opposed to a consequences of Perfecta's omission.
party litigant, a witness is merely a Moreover, we cannot deprive Quirino and
beholder, a spectator or onlooker, called Primitivo of the only instrument of proof
upon to testify to what he has seen, heard, available to them, as Perfecta alone has
or observed. As such, he takes no active part been in possession and administration of the
in the contest of rights between the parties. property in question and more than
Cast in the limited role of witness, a party in anybody else she can provide vital evidence
default cannot be considered as "taking part to buttress their claim.
in the trial." He remains suffering the
PETITION to review the orders of the
effects of an order of default.
Regional Trial Court of Negros
Same; Same; Same; Same; Same; Same; Oriental.
Allowing one of the petitioners as a witness
in the case at bar will preserve the right of The facts are stated in the opinion of
the other two petitioners to secure the Court.
attendance of witnesses and the production
of evidence in their behalf; To reject the GUTIERREZ, JR., J.:
presentation of testimony of the witness is to
This is a petition to review and set
treat the other petitioners as in default, and
aside two orders of the then Court of
deprive them of vital evidence to support
First Instance of Negros Oriental,
namely: (1) the order dated October 11, Oriental which was the address
1985, disqualifying Perfecta Cavili indicated in the complaint.
dela Cruz as a witness in Civil Case After trying to effect service, the
No. 6880 entitled "Clarita Cavili, et al. process server went back to the court
v. Perfecta Cavili, Quirino Cavili, and with the following return of service
Primitivo Cavili" and (2) the order —"served to Quirino and Primitivo
dated November 26,1985, refusing to Cavili not contacted, according to
reconsider the previous orders of Perfecta Cavili, subject persons is (sic)
disqualif ication and resetting staying in Kabangkalan, Negros
Occidental.''
613
Meanwhile, Atty. Jose P. Alamillo
filed a motion for extension to answer
VOL. 154, OCTOBER 9, 1987 613 in behalf of the defendants,
manifesting the representation of his
Cavili vs. Florendo
client Perfecta Cavili that she will
inform her brothers Primitivo and
the reception of evidence for the Quirino about the case.
defendants to December 19 and The defendants, however, failed to
20,1985 with a warning that should file their answer within the requested
defendants' witnesses fail to appear in period and upon motion of the
court on said date, they will be deemed plaintiffs, the defendants were declared
to have waived their right to be in default, and on October 5, 1979, a
witnesses in this case. judgment by default was promulgated
The private respondents filed Civil by Judge Augusto S. Villarin.
Case No. 6880 with the Court of First The records of the case, however,
Instance of Negros Oriental against show that a Manifestation was filed by
herein petitioners for Partition, Atty. Jose P. Alamillo informing the
Accounting, and Damages. After the court that since he never met
case was raffled to Branch I presided Primitivo and Quirino Cavili, who are
over by Judge Augusto S. Villarin, residents of another province, he
summons was issued to the three desisted from further appearing in the
petitioners, all at Bayawan, Negros case in their behalf.
 On November 7, 1979, Atty. Jose R In an order dated July 21,1981,
Alamillo received a copy of the Judge Cipriano Vamenta of Branch III
decision. On December 7, 1979, he filed of the Court of First Instance of Negros
a motion for new trial in behalf of the Oriental, to whom the case had been
defendants on grounds of lack of assigned after a re-raffle, set aside the
jurisdiction over the persons of order of April 23, 1980 and directed the
Primitivo and Quirino Cavili who had execution of the October 5, 1979
not been legally served with summons, decision without qualification ruling
and, with a meritorious defense that that the petitioners' remedy should
the properties sought to be partitioned have been appeal rather than new
have already been the subject of a trial.
written partition agreement between Their motion for reconsideration
the direct heirs of the late Bernado having been denied on August
Cavili 11,1981, the defendants, now
petitioners, brought the case to this
614
Court through a petition for certiorari,
G.R. No. 57771, entitled "Quirino
614 SUPREME COURT REPORTS Cavili, et al., Petitioners versus Hon.
ANNOTATED Cipriano Vamenta, et al.,
Respondents."
Cavili vs. Florendo
On May 31, 1982, this Court
rendered a decision, the dispositive
who are the predecessors of the parties portion of which reads:
in this case. In/an order dated April
23,1980, the court granted said motion. "WHEREFORE, Our resolution dismissing
The plaintiffs filed a motion for the petition is hereby reconsidered; the
reconsideration of the order granting petition is granted; and the order dated July
new trial and at the same time prayed 21,1981, is set aside while that of April
that a writ of execution be issued but 23,1980, is revived. No special
only in so far as defendant Perfecta pronouncement as to costs." (Rollo, p, 21)
Cavili was concerned.
Thereafter, the pre-trial and trial of
Civil Case No. 6880 was scheduled on
October 9,10, and 11, 1985 before Perfecta Cavili dela Cruz as a witness
Branch XXXVI of the Regional Trial in Civil Case No. 6880.
Court, presided by respondent Judge Hence, this petition.
Teodoro N. Florendo. The defendants, Petitioner Perfecta Cavili's
(now petitioners), presented Perfecta competence as a witness is put in issue
Cavili dela Cruz as their first witness. by the private respondents.
The respondents, through counsel, Section 18, Rule 130 of the Revised
moved for her disqualification as a Rules of Court states who are qualified
witness on the ground that having to be witnesses. It provides:
been declared in default, Perfecta
Cavili has lost her standing in court "Section 18. Witnesses; their qualifications.
and she cannot be allowed to —Except as provided in the next succeeding
participate in all proceedings therein, section, all persons who. having organs of
even as a witness. The court, through sense, can perceive, and perceiving, can
the respondent judge, sustained the make known their perception to others, may
respondents' contention and be witnesses. Neither parties nor other
disqualified her from testifying. persons interested in the outcome of a case
shall be excluded; nor those who have been
615 convicted of crime; nor any person on
account of his opinion on matters of
religious belief."
VOL. 154, OCTOBER 9, 1987 615
Cavili vs. Florendo The generosity with which the Rule
allows people to testify is apparent.
The petitioners, through counsel, Interest in the outcome of a case,
moved for a reconsideration of the conviction of a crime unless otherwise
ruling. provided by law, and religious belief
On November 26, 1985, the lower are not grounds for disqualification.
court issued an order denying Sections 19 and 20 of Rule 130
reconsideration of its Order dated provide for specific disqualifications.
October 11, 1985 disqualifying Section 19 disqualifies those who are
mentally incapacitated and children
whose tender age or immaturity
renders them incapable of being saving clause excludes other
witnesses. Section 20 provides for exceptions. (In Re Estate of Enriquez,
disqualification based on conflicts of 29 Phil. 167) As a general rule, where
interest or on relationship. Section 21 there are express exceptions these
provides for disqualifications based on comprise the only limitations on the
privileged communications. Section 15 operation of a statute and no other
of Rule 132 may not be a rule on exception will be implied. (Sutherland
disqualification of witnesses but it on Statutory Construction, Fourth
states the grounds when a witness may Edition, Vol. 2A, p. 90) The Rules
be impeached by the party against should not be interpreted to include an
whom he was called. exception not embodied therein.
There is no provision of the Rules The respondents, however, cite
disqualifying parties declared in Section 2, Rule 18 on Defaults, to wit:
default from taking the witness stand
for nondisqualified parties. The law "Section 2. Effect of order of default.—
does not provide default as an Except as provided in section 9 of Rule 13, a
exception. The specific enumeration of party declared in default shall not be
disqualified witnesses excludes the entitled to notice of subsequent proceedings
operation of causes of disability other nor to take part in the trial." "
than those
They advance the argument that to
616 allow Perfecta Cavili to stand as
witness would be to permit a party in
default "to take part in the trial."
616 SUPREME COURT REPORTS An explanation of the Rule is in
ANNOTATED
order.
Cavili vs. Florendo Loss of standing in court is the
consequence of an order of default.
mentioned in the Rules. It is a maxim Thus, a party declared in default is
of recognized utility and merit in the considered out of court and cannot
construction of statutes that an appear therein, adduce evidence, and
express exception, exemption, or be heard and for that reason he is not
entitled to notice. (Rule 18, Rules of
Court; Lim Toco v. Go Fay, 80 Phil. the limited role of witness, a party in
166) However, "loss of standing" must default cannot be considered as "taking
be understood to mean only the part in the trial." He remains suffering
forfeiture of one's rights as a party the effects of an order of default.
litigant, contestant or legal adversary. A party in default may thus be cited
A party in default loses his right to as a witness by his codefendants who
present his defense, control the have the standing and the right to
proceedings, and examine or present evidence which the former may
crossexamine witnesses. He has no provide. The incidental benefit giving
right to expect that his pleadings the party in default the opportunity to
would be acted upon by the court nor present evidence which may
may he object to or refute evidence or eventually redound to his advantage
motions filed against him. There is or bring about a desired result,
nothing in the rule, however, which through his co-defendants. is of minor
contemplates a disqualification to be a consequence.
witness or a deponent in a case. Of greater concern or importance in
Default does not make him an allowing the presence of Perfecta
incompetent. Cavili as a witness in the case at bar, is
As opposed to a party litigant, a the preservation of the right of
witness is merely a beholder, a petitioners Quirino and Primitivo
spectator or onlooker, called upon to Cavili to secure the attendance of
testify to what he has seen, heard, or witnesses and the production of
observed. As such, he takes no active evidence in their behalf. To reject
part in the contest of rights between Perfecta Cavili's s presentation of
the parties. Cast in testimonial evidence would be to treat
Primitivo and Quirino as if they too
617
were in default. There is no reason why
the latter should also be made to bear
VOL. 154, OCTOBER 9, 1987 617 the consequences of Perfecta's
omission. Moreover, we cannot deprive
Cavili vs. Florendo
Quirino and Primitivo of the only
instrument of proof available to them,
as Perfecta alone has been in ANNOTATED
possession and administration of the Weldon Construction Corporation vs.
property in question and more than Court of Appeals
anybody else she can provide vital
evidence to buttress their claim.
Battung, Jr., 102 SCRA 159.)
WHEREFORE, in view of the
Conduct and behavior of witness
foregoing, the petition is hereby
and the manner of testifying in court
GRANTED, The order of the
indicative of truth to their testimony.
respondent court disqualifying
(People vs. Yutila, 102 SCRA 264.)
Perfecta Cavili dela Cruz as a witness
Trial court's conclusion on
in Civil Case No. 6880 is hereby SET
credibility of witnesses is not to be
ASIDE. The case is remanded to the
disturbed. (People vs. Lacson, 102
court a quo for further proceedings.
SCRA 457.)
The temporary restraining order
issued on January 6,1986 is LIFTED. ——oOo——
SO ORDERED,

     Fernan (Chairman), Feliciano,

Bidin and Cortés, JJ., concur.

Petition granted Order set aside.

Case remanded to Court a quo for © Copyright 2021 Central Book Supply, Inc. All rights reserved.
further proceedings.

Notes.—Positive identification by
prosecution witness of accused is more
credible than witnesses' speculation.
(People vs.
618

618 SUPREME COURT REPORTS