(Rule 7 – Sec.

5 – Certification against Forum Shopping)

G.R. No. 129718 August 17, 1998
SANTO TOMAS UNIVERSITY HOSPITAL, petitioner, vs. CESAR ANTONIO Y. SURLA and EVANGELINE
SURLA, respondents

SUMMARY

Sps. Surla sued Sto. Tomas for damages. Now, Sto. Tomas filed a compulsory counterclaim, asserting that
the Spouses still owed to it the hospital bills, and also asked for damages. Sps. Surla moved to dismissed
the case alleging that the counterclaim must be accompanied with a certificate of non-forum shopping
based on SC A.O. circular 04-94

SC ruled that the circular is primarily intended to cover an initiatory pleading or an incipient application of a
party asserting a claim for relief. A compulsory counterclaim is not an initiatory pleading; therefore, it is not
covered by the provisions of SC A.O. circular 04-94

FACTS

● Dec 26, 1995 = Sps. Cesar and Evangeline Surla filed a complaint for damages against Santo
Tomas University Hospital with RTC of Quezon city, alleging:
○ Their son Emmanuel Cesar Surla, while confined at the said hospital for having been born
prematurely, had accidentally fallen from his incubator possibly causing serious harm on the
child

● Feb 28, 1996 = Santo Tomas filed its Answer with "Compulsory Counterclaim" asserting that Sps.
Surla still owed to it the amount of P82,632.10 representing hospital bills and making a claim for moral
and exemplary damages, plus attorney's fees, by reason of the supposed unfounded and malicious suit
filed against it

● Sps. Surla replied to the counterclaim and sought its dismissal, claiming that:
○ it does not comply with Supreme Court Administrative Circular No. 04-94 requiring that a
complaint and other initiatory pleadings, such as a counterclaim, cross-claim, third (fourth, etc.)
party complaint, be accompanied with a certificate of non-forum shopping

● In its Rejoinder to Sps. Surla’s Reply to Counterclaim contended that:

○ the subject circular should be held to refer only to a permissive counterclaim, an initiatory
pleading not arising out of, nor necessarily connected with, the subject matter of the plaintiffs
claims but not to a compulsory counterclaim spawned by the filing of a complaint and so
intertwined therewith and logically related thereto that it verily could not stand for independent
adjudication

● RTC = dismissed Santo Tomas’ counterclaim and held that:

○ the counterclaim does not distinguish whether the same should be permissive or
compulsory
● CA = dismissed Santo Tomas’ petition for certiorari

ISSUE

Can a compulsory counterclaim pleaded in an Answer be dismissed on the ground of a failure to

accompany it with a certificate of non-forum shopping? (NO, it applies to an initiatory pleading or an
incipient application of a party asserting a claim for relief)

RULING

● The real office of Administrative Circular No. 04-94 is to curb the malpractice commonly referred to
also as forum-shopping.
 ○ (Forum shopping) It is an act of a party against whom an adverse judgment has been rendered
in one forum of seeking and possibly getting a favorable opinion in another forum, other than
by appeal or the special civil action of certiorari, or the institution of two or more actions or
proceedings grounded on the same cause on the supposition that one or the other court would
make a favorable disposition

● The language of the circular distinctly suggests that it is primarily intended to cover an initiatory
pleading or an incipient application of a party asserting a claim for relief.

● It should not be too difficult, the foregoing rationale of the circular aptly taken, to sustain the view that
the circular in question has not, in fact, been contemplated to include a kind of claim which, by
its very nature as being auxiliary to the proceedings in the suit and as deriving its substantive and
jurisdictional support therefrom, can only be appropriately pleaded in the answer and not remain
outstanding for independent resolution except by the court where the main case pends

● Prescinding from the foregoing, the proviso in the second paragraph of Section 5, Rule 8, of the 1997
Rules of Civil Procedure, i.e., that the violation of the anti-forum shopping rule "shall not be
curable by mere amendment . . . but shall be cause for the dismissal of the case without
prejudice," being predicated on the applicability of the need for a certification against forum shopping,
obviously does not include a claim which cannot be independently set up

● IN THIS CASE, Santo Tomas, nevertheless, is entitled to a mere partial relief

● The so-called "counterclaim" really consists of two segregative parts
○ (1) for unpaid hospital bills of respondents' son, Emmanuel Surla, in the total amount of
P82,032.10
○ (2) for damages, moral and exemplary, plus attorney's fees by reason of the alleged malicious
and unfounded suit filed against it

● It is the second, not the first, claim that the Court here refers to as not being initiatory in
character and thereby not covered by the provisions of Administrative Circular No. 04-94.

● WHEREFORE, the appealed decision is hereby modified in that the claim for moral, exemplary
damages and attorney's fees in Civil Case No. Q-95-25977 of petitioner is ordered reinstated. The
temporary restraining order priorly issued by this Court is lifted. No costs. SO ORDERED.
(Rule 7 – Sec. 5 – Certification against Forum Shopping)
G.R. No. 139018 April 11, 2005
ESTHERLITA CRUZ-AGANA, Petitioner, vs. HON. JUDGE AURORA SANTIAGO-LAGMAN (In her capacity
as Presiding Judge of Regional Trial Court, Branch 77, Malolos, Bulacan) and B. SERRANO
ENTERPRISES, INC., Respondents

SUMMARY

Estherlita filed a complaint against B. Serrano Enterprises Inc. for annulment of the title of a lot. The latter
in turn, filed its compulsory counterclaim. Now, Eshterlita moved for the dismissal of the counterclaim for
lack of a certificate of non-forum shopping citing A.O. 04-94

SC Reiterated the Rulings in Sto Tomas vs Surla and the case of Ponciano, that the circular is intended
primarily to cover "an initiatory pleading or an incipient application of a party asserting a claim for relief.”
And in this case, the counterclaim set up by the respondent arises from the filing of the plaintiff's complaint.
Thus, a certificate of non-forum shopping is not needed.

FACTS

● March 18, 1996 = Estherlita Cruz-Agana filed a Complaint with the RTC Bulacan for annulment of title
with prayer for preliminary mandatory injunction against B. Serrano Enterprises, Inc., claiming that:
○ Estherlita is the sole owner of the subject lot, being the sole heir of Teodorico Cruz
○ that the lot was fraudulently sold to Eugenio Lopez, Jr. who later on transferred the lot to B.
Serrano Enterprises, Inc.

● B. Serrano Enterprises, Inc filed its Answer with compulsory counterclaim

● Estherlita moved to dismiss the counterclaim for lack of a certificate of non-forum shopping

● Judge Santiago-Lagman of RTC denied the motion to dismiss the counterclaim.

○ Reason: counterclaim is compulsory and therefore excluded from the coverage of Section 5,
Rule 7 of the Rules of Court

● Estherlita moved that the RTC reconsider its order, invoking the mandatory nature of a certificate of
non-forum shopping under Supreme Court Administrative Circular No. 04-94.

● B. Serrano Enterprises, Inc filed an MR arguing that Administrative Circular No. 04-94 does not apply
to compulsory counterclaims following the ruling in Santo Tomas University Hospital v. Surla

● RTC ruled that the counterclaim in this case is compulsory in nature. That the filing of a compulsory
counterclaim does not require a certificate of non-forum shopping

ISSUE

WON a certificate of non-forum shopping is required when filing a compulsory counterclaim? (NO)

RULING

● This Court has squarely settled this issue in Santo Tomas University Hospital v. Surla
○ The Court pointed out that this circular is intended primarily to cover "an initiatory pleading or
an incipient application of a party asserting a claim for relief."

● The Court reiterated this ruling in Ponciano v. Judge Parentela, Jr.

○ Administrative Circular No. 04-94 does not apply to compulsory counterclaims. The circular
applies to initiatory and similar pleadings
 ○ A compulsory counterclaim set up in the answer is not an "initiatory" or similar pleading.
The initiatory pleading is the plaintiff's complaint
○ A respondent has no choice but to raise a compulsory counterclaim the moment the plaintiff files
the complaint
○ Otherwise, respondent waives the compulsory counterclaim
○ In short, the compulsory counterclaim is a reaction or response, mandatory upon pain of
waiver, to an initiatory pleading which is the complaint

**Are the rulings in Santo Tomas and Ponciano contrary to the mandate of A.O 04-94?**

● NO. The Constitution expressly bestows on this Court the power to promulgate rules concerning the
pleading, practice and procedure in all courts
○ Procedural matters are within the sole jurisdiction of this Court to prescribe

● This Court has the exclusive jurisdiction to interpret, amend or revise the rules it promulgates, as long
as the rules do not diminish, increase, or modify substantive rights.

**Compulsory vs Permissive Counterclaims**

● A compulsory counterclaim is any claim for money or other relief, which a defending party may have
against an opposing party, which at the time of suit arises out of, or is necessarily connected with, the
same transaction or occurrence that is the subject matter of plaintiff's complaint
○ It is compulsory in the sense that it is within the jurisdiction of the court, does not require for its
adjudication the presence of third parties over whom the court cannot acquire jurisdiction, and
will be barred in the future if not set up in the answer to the complaint in the same case.
● Any other counterclaim is permissive

**IN THIS CASE**

● the counterclaim set up by respondent arises from the filing of plaintiff's complaint
● The counterclaim is so intertwined with the main case that it is incapable of proceeding
independently
● The counterclaim will require a re-litigation of the same evidence if the counterclaim is allowed to
proceed in a separate action
● A compulsory counterclaim does not require a certificate of non-forum shopping because a
compulsory counterclaim is not an initiatory pleading

● WHEREFORE, the instant petition is DENIED for lack of merit. We AFFIRM the Order of the Regional
Trial Court, Branch 77, Malolos Bulacan, dated 4 June 1999 recalling the Order dated 25 May 1999
which dismissed the compulsory counterclaim of respondent B. Serrano Enterprises, Inc

FRANCISCA GATCHALIAN, plaintiff-appellee, vs. GORGONIO PAVILIN,JOSE DE VERA,EUGENIO DE

VERA,JOSE ORTIZ, ALFONSO ORTIZ,and CONRADO CABUYADO, defendants- appellants.

FACTS:

In 9 August 1958, plaintiff Gatchalian is the owner of a tract of land consisting of three lots with a total area of
about 143 hectares as evidenced by one Original Certificate of Title of RD of Isabela.

Lot No. 2 thereof consists of about 88 hectares, portions of which were “by means of force, strategy, and/or
stealth, unlawfully entered” by herein defendants-appellants during the planting season of 1953, “ejecting the
plaintiff and/or her representative or representatives, thereby illegally depriving said plaintiff of the possession
of said portions” which have an aggregate area of 36 hectares; and that the extent or area in Lot No. 2
respectively entered by the defendants are, more or less, as follows:

§ Gorgonia Pavilin .......................... 3 hectares

§ Jose de Vera and Eugenio de Vera ..........12”

§ Jose Ortiz ............................................8”

§ Alfonso Ortiz ......................................... 8”

§ Conrado Cabuyadao ....................... 5”

TOTAL....................... 36 hectares;

APPELLANT IN THEIR ANSWER: denied all the material facts and allegations of the complaint and made
“Affirmative and Alternative Defenses” with “Counterclaim”, with special emphasis on the fact that
said Certificate of Title No. P-31 is null and void ab initio, the same being a forest land at the time it was
allegedly bought in 1947 by plaintiff-appellee. “the alleged landholding and title of the plaintiff could not
have covered defendant’s landholding”

Upon motion of the plaintiff, and overruling the objections of the defendants,

(Dec 15, 1959) CFI: declared that there was no genuine issue of fact in so far as the title to the property was
concerned, and granted summary judgment in her favor, declaring plaintiff-appellee Francisca Gatchalian
owner of the disputed property and ordering defendants-appellants to vacate the same; In a supplementary
decision (23 August 1960), plaintiff was awarded damages to be paid by defendants.

Their motions for reconsideration having been rejected, defendants appealed to this Court.

CONTENTION OF PLAINTIFF(GATCHALIAN): that the defendants-appellants’ pleadings raised no genuine

issue of fact.

ISSUE: WON THERE WAS was no genuine issue of fact TO BE GRANTED SUMMARY JUDGMENT BY CFI?

RULING: NO.

We find this contention unwarranted.

Our examination of the pleadings and affidavits submitted for the defendants reveals that while inartistically
drawn, they interpose two main defenses: (1) that their landholdings lay outside the title of the plaintiff; and (2)
that if her title did cover their landholdings, the title was acquired illegally, because at the time the plaintiff’s
sales patent was issued, the land covered was still part of a forest reserve. While such defenses are to a
certain extent incompatible inter se, it can not be said that they raise no genuine issue of fact. It must be
remembered that section 9 of Rule 15 specifically authorizes the pleading of alternative or hypothetical
defenses, and the decisions of this Court hold that such defenses may be inconsistent with each other
provided each is consistent in itself.

In view of the circumstances, the following notes that former Chief Justice Moran (cf. cit.) has made on the
rendition of summary judgments under the Federal Rules are apposite and fully applicable to the case now
before us:

“A summary judgment should not be granted unless the facts are clear and undisputed, and if there is a
controversy upon any question of fact, there should be a trial of the action upon its merits (Kissick
Construction Co. vs. First National Bank of Wahoo, Nebraska, 6 Fed. Rules Service, 56c. 41, Dec. 3,
1940).”
 . In other words, the rule (Rule 36, sec. 3) does not invest the court with jurisdiction summarily to try the
factual issues on affidavits, but authorizes summary judgment only if it clearly appears that there is no
genuine issue as to any material fact.

A party who moves for summary judgment has the burden of demonstrating clearly the absence of any
genuine issue of fact, and any doubt as to the existence of such an issue is resolved against the
movant.

Thus, in ruling on a motion for summary judgment the court should take that view of the evidence most
favorable to the party against whom it is directed, giving that party the benefit of all favorable
inferences.

If the defense relied upon by the defendant is legally sufficient and does not appear ‘patently sham’ the
motion for summary judgment should be denied.”

The conflicting claims of the parties plainly require the exact delimitation of the areas covered by the
title of the plaintiff and those occupied by the defendants in order to find out if they overlap. To do so,
a trial is indispensable.

As to the alleged lack of personality of defendants-appellants to assail appellee’s land grant and certificate of
title for the reason that said appellants are mere prospective homestead applicants, it is sufficient to remark
that by reason of their prior occupancy and cultivation, these parties have already acquired possessory rights
that they may vindicate and defend against intruders without better title. And if it be true that the Bureau of
Lands had no jurisdiction to issue a patent in favor of appellee Francisca Gatchalian because the land involved
was still inalienable forest land when granted, then it may be plausibly contended that her patent title would be
ab initio void subject to attack at any time by any party adversely affected
Marquez vs. Valencia, 99 Phil., 740, August 21, 1956

G.R. No. L-7328 August 21, 1956

HEIRS OF LAUREANO MARQUEZ, petitioners,

vs.

VICENTE VALENCIA, respondent.

Rosendo J. Tansinsin for petitioners.

FACTS:

● Vicente Valencia applied for the registration of two parcels of land, claiming he had acquired title
because spouses Laureano Marquez and Eusebia Capiral had failed to repurchase them within the
period of time stipulated.
● Laureano Marquez and Eusebia Capiral objected, averring that they were the owners of the land and
parcels of land were the subject of litigation between them and the applicant then pending in the CFI
of Bulacan (civil case No. 5250).
● After the CFI of Bulacan and on appeal the CA had rendered their respective judgments as above
adverted to, this Court on appeal by certiorari held that the deed of sale with a right to repurchase
was only an equitable mortgage.
● Vicente Valencia amended his application claiming that he had inherited the parcel of land from his
late maternal grandfather Pedro Crisostomo.
● CFI of Bulacan, acting as land registration court, found that the judgment in the civil case (No. 5250)
between the same parties above referred to constitutes res judicata and bars the claim of the
applicant to have the land registered in his name. On appeal the Court of Appeals held otherwise.

ISSUE:

WON the judgment in Civil Case No. 5250 file the filing of an amended application.

RULING: YES

The action for nullity of annulment of the deed of sale of a parcel of land with a right reserved by the vendors
to repurchase it brought in civil case No. 5250 of the Court of First Instance of Bulacan by the spouses Laureano
Marquez and Eusebia Capiral against Vicente Valencia was really for reformation of the contract or deed of sale.
The action referred to involved ownership or title to the parcel of land purportedly sold by the plaintiffs to the
defendant with a right reserved by the former to repurchase it from the latter, because whether the contract was of
antichresis, of sale or of mortgage, the only inference that could be drawn from it was that the plaintiffs were the
owners of the parcel of land.

By resisting the claim of the plaintiffs upon the ground that he had acquired title to the parcel of land by a
deed of sale with a right to repurchase and for failure of the plaintiffs to repurchase it within the period of time
stipulated in the deed, the defendant expressly admitted that he had derived title to the parcel of land from the
plaintiffs. If aside from relying solely on the deed of sale with a right to repurchase and failure on the part of the
vendors to purchase it within the period stipulated therein, the defendant had set up an alternative though
inconsistent defense that he had inherited the parcel of land from his late maternal grandfather and presented
evidence in support of both defenses, the overruling of the first would not bar the determination by the court of
second.
 The defendant having failed to set up such alternative defenses and chosen or elected to rely on one only,
the overruling thereof was a complete determination of the controversy between the parties which bars a
subsequent action based upon an unpleaded defense, or any other cause of action, except that of failure of the
complaint to state a cause of action and of lack of jurisdiction of the Court. The determination of the issue joined by
the parties constitutes res judicata. More, the finding of the trial court and the Court of Appeals that the respondent
took a lease on the parcel of land sought to be registered by him from the spouses Laureano Marquez and Eusebia
Capiral, the predecessors-in-interest of the petitioners, is another proof that Vicente Valencia was not the owner
thereof. A lease contract lawfully entered into precludes the leasee from questioning the title of the lessor.
FIlipino Sakdal- Sufficient in Form and Language

TUMANG VS BAUTISTA

FACTS:

Javier, the private respondent herein, filed a Sakdal against Enrique Tumang and his daughter
Georgia Tumang para Danyos Purhisyo. The sakdal was written in Tagalog and was unaccompanied
by an English translation. Consequently, Tumang filed a motion for bill of particulars praying that
Javier furnish the Court with an English copy of the complaint, being the official language of the
Court. The RTC ruled that the complaint written in Pilipino, which is an official language, is proper
and admitted. However, it ordered Tumang to at least indicate the docket number of the criminal
case, and the name, location and branch number of the Court in which it was filed. Javier complied
but the Tumang et al failed to answer the sakdal and were declared in default. They then sought
reconsideration for the order of default and for the aforementioned RTC decision.

RTC- set aside the order of default but held the motion for reconsideration to be without merit
because Pilipino is an official language and there is no law prohibiting it to be used in pleadings

ISSUE:

WON the trial Court ruled correctly that the sakdal can be written in Tagalog

HELD:

No BUT Tumang and the others submitted to the RTC decision that it can be in Tagalog by
analyzing the sakdal. So the Court still denied this petition.

The undersigned (ponente) in his lecture entitled "Writing Decisions" has said in part:

What language should the judge use? The Constitution says that "Until otherwise provided
by law, English and Pilipino shall be the official languages." (Art. XV, Sec. 3, par. 3.) If we
are to be guided by this provision then either English or Pilipino can be used. But in fact
English is almost exclusively used and with good reason. For Pilipino is still a gestating
language. The Constitution says so. It directs that "The Batasang Pambansa shall take
step towards the development and formal adoption of a common national language to be
known as Pilipino." (Id, par. 2). The Batasang Pambansa, to my knowledge, still has to
take steps towards the development and formal adoption of Pilipino as a common national
language. So I submit that we should confine ourselves to the English language.

However, the petitioner cannot now raise before this Court - the question of Language. For in the
motion to dismiss the complaint, the defendants tacitly submitted to the trial court's ruling that the
sakdal did not have to be translated to English; they analyzed the sakdal in arguing that it stated no
cause of action. Such analysis demonstrated that they understood its contents although it was not in
English.
G.R. No. L-8418 December 9, 1915

L.O. HIBBERD, plaintiff-appellant, vs. WM. J. ROHDE and D.J. MCMILLIAN, defendants-appellees.

The Case:

· A suit on a promissory note against the makers, wherein only one among the maker, which is Rohde, appeared
and answered.

· He not having entered a verified specific denial of the genuineness and due execution of the note.

· The plaintiff claims that his special defense of illegality of consideration is cut off by section 103 of the
Code of Civil Procedure (now Section 8 of Rule 8).

Facts:

· McMillian was in the retail liquor business and secured a stock of merchandise valued at P1,200 from Brand &
Hibberd and sold it.

· Brand & Hibberd filed a complaint of estafa against McMillian. McMillian was arrested.

· The defendant Rohde was a practicing attorney and undertook McMillian's defense in the estafa case.

· Rohde agreed to sign the promissory note if Brand & Hibberd would withdraw the estafa complaint. He did this
because he did not want his client to remain in confinement pending his trial in the CFI.

· His client was sick at the time and Rohde was afraid that confinement in the jail for such a period of time would
seriously endanger his health.

· After the execution of the note, Brand & Hibberd moved in the justice court that the estafa complaint be
dismissed and this motion was granted by the presiding justice.

· Rohde subsequently paid two hundred pesos on the note. The note was assigned to the plaintiff L.O. Hibberd,
on June 10, 1911.

The note reads as follows:

BAGUIO, BENGUET, April 27th, 1911.

For value received, we the undersigned parties, jointly and severally agree to pay to the firm of
Brand & Hibberd, of the city of Baguio, P. I., twelve hundred pesos, Philippine currency, in monthly
installments of one hundred pesos per month, beginning with the first day of June, 1911. (Not
transferable, excepting to Jos. C. Brand or L.O. Hibberd.)

WM. J. ROHDE.

D. J. MCMILLIAN.

RTC:

The trial court found as a fact that the consideration of the note was the compromise of a public offense.

Issue:

WON the defense of illegality of consideration cut off by actionable document? - NO

Ruling:
With regards to the illegality of the consideration, the court do not think that the evidence justifies this conclusion. It
is true that the defendant Rohde testified that the consideration of the note was "the withdrawal of the false
charge against him (McMillian) and to get him out of jail." But it is also in evidence that McMillian owed Brand &
Hibberd the full amount of the note and Rohde knew this fact before he signed the note.

It is not shown that Brand & Hibberd agreed not to testify in any further criminal proceedings against McMillian, or
that they would suppress any evidence in their possession

The court do not think the record justifies a more radical conclusion as to what Brand & Hibberd agreed to do with
reference to the criminal phase of the transaction than that they promised not to further actively participate in the
case. The record does not justify the conclusion that they went further and agreed to actively assist in preventing the
due investigation of the criminal charge by suppressing evidence, by declining to appear against McMillian if duly
subpoenaed as witnesses, or by other means.

The effect of the admission is such that in the case of a promissory note a prima facie case is made for the plaintiff
which dispenses with the necessity of evidence on his part and entitles him to a judgment on the pleadings unless a
special defense of new matter, such as payment, is interposed by the defendant

By the admission of the genuineness and due execution of an instrument, as provided in this section, is
meant:
1. That the party whose signature it bears admits that he signed it. or
2. That it was signed by another for him with his authority;
3. That at the time it was signed it was in words and figures exactly as set out in the pleadings of the party
relying upon it;
4. That the documents was delivered;
5. And that any formal requisites required by law, such as a seal, an acknowledgment, or revenue stamp,
which it lacks, are waived by him.

Hence, such defenses are cut off by the admission of its genuineness and due execution.
1. That the signature is a forgery.
2. or that it was unauthorized, as in the case of an agent signing for his principal, or one signing in behalf of a
partnership, or of a corporation or Banking Corporation.
3. or that, in the case of the latter, that the corporation was not authorized under its charter to sign the
instrument
4. or that the party charged signed the instrument in some other capacity than that alleged in the pleading
setting it out
5. or that it was never delivered

The judgment appealed from is reversed and judgment is decreed against the defendant Rohde for the sum
of one thousand pesos, the amount remaining unpaid on the note, together with legal interest from the date of the
institution of this action.
Rule 8 – Parts and Contents of a Pleading
Section 8 - Genuineness and due execution of the actionable document

Bough and Bough vs. Cantiveros and Hanopol., 40 Phil. 209, September 29, 1919

FACTS:

● In 1912, Defendant Matilde Cantiveros sighed a marital contract of separation from her husband Jose Vasquez.
● Petitioner Basilia Bough is the cousin of the defendant and was married to Gustavus Bough.
● Through the influence of Gustavus Bough, who brought a story to Cantiveros that her husband was in town and
might contest the contract for the separation of the conjugal property, she was induced to sign a fictitious contract
of sale of all her property to Basilia Bough.
● As an assurance, the spouses signed a document donating the said properties to Cantiveros in case of their
death and their children.
● Petitioners Basilia Bough and Gustavus Bough sought to have themselves put in possession of the property
covered by the deed of sale quoted in the complaint, and to require the defendant Matilde Cantiveros to pay them
damages and costs.
● Cantiveros answered with a general denial and a special defense in which she asked that judgment be rendered
declaring the contract of sale made between herself and Basilia Bough null.
● The plaintiffs, thereupon, denied under oath the genuineness and due execution of the so-called donation
intervivos set forth in the answer.
● The Court of First Instance of Leyte, therefore, declared the deed of sale fictitious, null, and without effect.

ISSUE: It is undeniable that this was an action brought upon a written instrument, and that the complaint contained a copy
of the instrument, but that its genuineness and due execution were not specifically denied under oath in the answer. Is this
fatal to the defense?

RULING:

Section 103 of the Philippine Code of Civil Procedure provides:

When an action is brought upon a written instrument and the complaint contains or has annexed a copy of such
instrument, the genuineness and due execution of the instrument shall be deemed admitted, unless specifically
denied under oath in the answer; and when the defense to an action, or a counterclaim stated in an answer, is
founded upon a written instrument and the copy thereof is contained in or annexed to the answer, the
genuineness and due execution of such instrument shall be deemed admitted, unless specifically denied under
oath by the plaintiff in his pleadings.

● The law says that the genuineness and due execution of a written instrument properly pleaded shall be deemed
admitted unless the plaintiff or defendant, as the case may be, shall specifically deny the same under oath.
● When the law makes use of the phrase "genuineness and due execution of the instrument" it means nothing more
than that the instrument is not spurious, counterfeit, or of different import on its face from the one executed.
● As an example, where the name of a corporation is signed to the document which is the basis of an action, the
failure of the defendant corporation to put in issue, by denial under oath, the due execution of the instrument, as
required in section 103 of the Code of Civil Procedure, operates as an admission of the authority of the officer to
execute the contract, since the authority of the officer to bind the company is essential to the due execution of its
contract. (Ramirez vs. Orientalist Co. and Fernandez [1918], 38 Phil., 634.)
● But the failure of the party to file an affidavit denying the genuineness and due execution of the document does
not estop him from controverting it by evidence of fraud, mistake, compromise, payment, statute of limitations,
estoppel, and want of consideration.
● The Court holds that although the defendants did not deny the genuineness and due execution of the contract of
sale of December 9, 1913, under oath, yet the defendants could properly set up the defenses of fraud and want of
consideration.

(Rule 8 – Sec. 8 – Genuineness and Due Execution of the Actionable Document)

Imperial Textile Mills, Inc. vs. .Court of Appeals, 183 SCRA 584, March 22, 1990
FACTS:

● In an action for the collection of a sum of money that was filed by the bank against Imperial in the RTC
of Makati, a promissory note was attached. .
● Imperial denied liability and alleged that one Julio Tan had no authority to negotiate and obtain a loan
on its behalf. Imperial specifically denied the aforestated promissory note alleged in the complaint, the
answer was not verified. For this reason, in due course, a decision was rendered by the trial court in
favor of the bank.
● Imperial brought an appeal to the CA, and the Court of Appeals affirmed the judgment appealed from
with costs against Imperial.

ISSUE: WON the promissory note is duly admitted as evidence? YES

HELD:

● No rule is more settled than that in an action based on a written instrument attached to the complaint, if
the defendant fails to specifically deny under oath the genuineness and due execution of the
instrument, the same is deemed admitted.
● In this case, Imperial failed to specifically deny under oath the genuineness and due execution of the
promissory note subject of the complaint. By its omission, petitioner clearly admitted the genuineness
and due execution of the document and that the party whose signature appears thereon had indeed
signed the same and that he has the authority to sign the same and that the agreement between the
parties is what was in words and figures in the document. Defenses which are inconsistent with the due
execution and genuineness of the written instrument are cut-off by such admission.
● The claim of petitioner is that its failure to specifically deny under oath the actionable document does
not prevent it from showing that one Julio Tan was not authorized to enter into the transaction and to
sign the promissory note for and in behalf of the petitioner. But precisely, the petitioner is a party to the
instrument represented by Julio Tan so that it may not now deny the authority of Julio Tan to so
represent it. The due execution and genuineness of the document have thereby been conclusively
established.chanrob

(Rule 8 – Sec. 8 – Genuineness and Due Execution of the Actionable Document)

Toribio v Bidin

G.R. No. L-57821 January 17, 1985

Petitioners: SEGUNDINO TORIBIO, EUSEBIA TORIBIO, and the HEIRS OF OLEGARIO TORIBIO,
represented by his widow, ADELA DE LOS REYES
Respondents: THE HON. JUDGE ABDULWAHID A. BIDIN, in his capacity as Presiding Judge, Branch I,
Court of First Instance, City of Zamboanga, DALMACIO RAMOS, and JUANITO CAMACHO, Respondents.

Facts:

● Justa Francisco inherited a lot from his parents.

● Justa died and was survived among by eight (8) children namely/
● Among the eight heirs, Eufremia, Alfonso and Petrona, sold their property to Ramon Ledesma.
● Rafael Toribio also sold his share to his brother Dionisio who, in turn, sold the same to Ramon
Ledesma. Thus, the latter acquired four (4) shares out of eight (8) shares.
● Subsequently, Dionisio sold his own hereditary share to Juanito Camacho.
● The three other heirs, petitioners Segundino, Eusebia and Olegario, alleging that their shares had
never been sold nor transferred, filed a case against herein private respondents for recovery of
hereditary rights.
○ How Juanito Camacho, who was entitled to only a total area of 931 square meters, nor how one
Dalmacio Ramos, Jr., acquired a share of the property that was allegedly not known to them.
● Defendants-Respondents alleged that the shares of plaintiffs-petitioners had likewise been sold to
Dionisio Toribio, their brother, who, in turn, sold the same to Juanito Camacho and Dalmacio Ramos.
○ The alleged sale from petitioners to Dionisio and the sale from Dionisio to the respondents were
evidenced by deeds of sale, xerox copies of which were appended to and made an integral part
of the respondents' partition agreement between the respondents and also a xerox copy of the
respondents' transfer certificates of title.
● While testifying during the trial, Eusebia Toribio was asked whether she executed any sale of her share
in the parcel of land in litigation.
● The counsel for private respondents objected, raising the proper mode of contesting the genuineness of
an actionable document pursuant to Sections 7 and 8, Rule 8 of the Revised Rules of Court.
○ The trial court sustained the objection.
● Petitioners filed a constancia with a motion for reconsideration stating that the documents submitted by
the respondents were merely evidentiary in nature, not a cause of action or defense, the due execution
and genuineness of which they had to prove.
○ They stated that the defense consisting mainly of transfer certificates of titles in the
respondents' names originating from the sale from petitioners to Dionisio and from the latter to
the respondents were merely evidentiary in nature. They argued that a simple specific denial
without oath is sufficient.
● The court denied the motion for reconsideration.
○ The documents attached to the respondents' answer and made an integral part thereof were
declared to be the very foundation or basis of the respondents' defense and not merely
evidentiary in nature.

Issue:

1. Whether or not the document is included as a necessary part of the defense as to make it actionable
[Yes]
2. Whether or not the genuineness and due execution of the deeds evidencing the two transactions have
to be denied under oath [Yes]

Ruling:

1. Yes, the document is included as a necessary part of the defense to make it actionable.

It is clear that the respondents anchor their defense on the deeds of sale by virtue of which the
hereditary rights of all the petitioners over Lot 1943-B were sold, transferred, and conveyed in favor of
their brother, Dionisio Toribio, who in turn sold the same to herein respondents. The deed of sale
executed by the petitioners in favor of their brother Dionisio is an essential and indispensable part of
their defense to the allegation that the petitioners had never disposed of their property.
 1. Yes, the genuineness and due execution of the deeds evidencing the two transactions have to be
denied under oath.

The proper procedure was for the petitioners to specifically deny under oath the genuineness and due
execution of the questioned deeds of sale and to set forth what they claim to be the facts. However, the
oversight or negligence of petitioners' counsel in not properly drafting a reply to the answer and an
answer to the counterclaim is not necessarily fatal to their cause.

The complaint was verified under oath by the petitioners.

The petitioners' counsel was obviously lulled into complacency by two factors. First, the plaintiffs, now
petitioners, had already stated under oath that they never sold, transferred, or disposed of their shares
in the inheritance to others. Second, the usual procedure is for a defendant to specifically deny under
oath the genuineness and due execution of documents set forth in and annexed to the complaint.
Somehow, it skipped counsel's attention that the rule refers to either an action or a defense based upon
a written instrument or document. It applies to both plaintiffs and defendants.

Under the facts of this case, the private respondents were placed on adequate notice by Paragraph 11
of the verified complaint that they would be caned upon during trial to prove the genuineness or due
execution of the disputed deeds of sale.

Moreover, the heirs of Olegario Toribio, his widow and minor children represented by their mother, are among
the plaintiffs-petitioners. They are not parties to the deeds of sale allegedly executed by their father, aunt, and
uncle. They are not required to deny the deeds of sale under oath. The private respondents will still have to
introduce evidence to establish that the deeds of sale are genuine and that they were truly executed by the
parties with authority to dispose of the disputed property.

Dispositive Portion:

WHEREFORE, the order of the respondent court dated July 20, 1981 is hereby REVERSED and SET ASIDE.
The Regional Trial Court which took over the cases of the respondent court is ordered to receive the
petitioners' evidence regarding the genuineness and due execution of the disputed deeds of sale.
Ferrer vs. Ericta 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.

SUMMARY OF FACTS: On January 26, 1975, plaintiff-spouses and their daughter sued defendant-spouses
and their 16-year old son for damages arising from an accident that occurred on December 31, 1970. The
complaint alleged that the defendants recklessly drove a car causing it to overturn, resulting in physical injuries
on plaintiffs’ daughter who was a passenger therein. Defendant answered that their son exercised due care in
driving the car and that plaintiffs’ daughter was not a passenger but merely a joy rider. Subsequently,
defendants moved to dismiss the complaint on the ground of prescription. Plaintiffs opposed the motion,
invoking Section 2, Rule 9 which provides that "defenses and objections not pleaded in the motion to dismiss
or answer are deemed waived." The judge sustained the motion and absolved defendants.

FACTS:

A complaint for damages is filed against respondents Sps. PFLEIDER 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 Sps. 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 16 years of
age, without proper official authority, drove the 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 , 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.

ANSWER OF DEFENDANTS: putting up the affirmative defense that defendant Dennis Pfleider exercised
due care and utmost diligence in driving the vehicle 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.

At the pre-trial on May 12, 1975, only plaintiffs-petitioners and their counsel were present. Consequently,
defendantsprivate respondents were declared in default and the plaintiffs-petitioners were allowed to present
their evidence ex parte.
On May 21, 1975, petitioners moved that they be granted an extension of 10 days from May 22to present her
evidence, which was granted by the court which was later continued by the trial court to June 16, 1975, when
the deposition of Annette Ferrer was submitted by petitioners and admitted by court.

On June 26, 1975, private respondents Sps. PFLEIDER 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.

On July 21, 1975, the motion of private respondents was denied by respondent Judge and rendered
judgment against private respondents and ordering the defendants, as a result thereof, to pay jointly and
severally the plaintiffs.

On September 1, 1975, private respondents filed a Motion for Reconsideration 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 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 the 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.

On September 10, 1975, a Supplemental Motion for Reconsideration was subsequently filed by
defendants-private respondents, that their defense of prescription has notbeen waived and may be raised
even at such stage of theproceedings because on the face of the complaint, their cause of action had
already prescribed.

CONTENTION OF PETITIONERS: (a) the defense of prescription hadbeen waived while the defense that
the complaint states nocause of action “is available only at any time not later than thetrial and prior to
the decision”; (b) 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 motion for reconsideration are pro forma Do
notsuspend the running of the thirty-day period to appeal, whichwas from August 5, 1975, when defendants
received a copy ofthe decision, to September 4, 1975, and hence the decision hasalready become final and
executory.

CFI 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; (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 to compel the immediate execution of the Decision of the CFI, dated
July 21, 1975. The pertinent facts are as follows:

ISSUE: whether the defense of prescription had been deemed waived by private respondents’ failure to allege
the same in their answer.

RULING:

As early as Chua Lamko v. Dioso, et al., 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.

Again, in Philippine National Bank v. Pacific Commission House, where the action sought to revive a
judgment rendered by CFI 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 the answer and deemed waived.” We held therein that “* * * the fact that the plaintiff’s own
allegation in the 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 occurred 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. The four-year period begins from the day the quasi-delict is committed or the date of
the accident.
CHUA LAMKO VS DIOSO

FACTS:

Chua Lamko obtained judgment to foreclose the mortgage debt of Eligio Dioso. he mortgaged property was
accordingly sold by the Sheriff, at public auction, to Chua Lamko as the highest bidder; but he never obtained
judicial confirmation of the sale. He took possession of the property and sold it to Maranan and Suarez, who in
turn sold it to defendantsVelo andReyes. The latter conveyed the property for P3,500 to Pedro Deza and
Ligaya Sto. Domingo. The successors of Dioso instituted this action to recover the mortgaged property,
alleging ownership and nullity of the sale to Chua Lamko and of the subsequent conveyances.

Brought in as a third-party defendant by his successors in interest who are the defendants, Chua Lamko
interposed by way of counterclaim against plaintiffs, the judgment he had obtained in Civil Case No. 7080
which, according to him amounted to P3,918.96 and which he should be paid, if plaintiffs persisted in their
refusal to validate the foreclosure sale.

RTC-Chua Lamko did not acquire ownership over the property thus he could not sell it, Dioso’s successors are
the owner, Chua Lamko’s counterclaim founded on the judgment have already been prescribed and the Court
can no longer pass it

CA-affirmed RTC ruling

*In this case Chua Lamko is not assailing the decision regarding the invalidity of the foreclosure sale but he
insists on his counterclaim contending first, that it has not prescribed because of the Moratorium Law, and
second, that the lower courts could not consider prescription because it had not been alleged by plaintiffs in
their answer to his counterclaim in the court of first instance

ISSUE:

WON prescription can be invoked despite it not being alleged in the pleading by Dioso’s successors

HELD:

YES

It is true that if the defense of prescription is not raised in the answer it is deemed waived under Rule 9, secs.
9, 10 of the Rules of Court. But the waiver applied to defenses of prescription "that would raise issues of fact
not appearing upon the preceding pleading."

The defendant may set fourth by answer as many affirmative defenses as he may have. All such
grounds of defense as would raise issues of fact not arising upon the preceding pleading must be
specifically pleaded, including fraud, statute of limitations, release, payment, illegality, statute of
frauds, estoppel, former recover, discharged in bankruptcy, and all other matter by way of
confession and avoidance. (Sec. 9, rule 9.)

The plaintiffs were not required to specifically plead prescription, because the pleading of Chua Lamko
disclosed that the judgment had been rendered in March 7, 1939 and it was asserted only in March,
1950; i.e., more than ten years before. No issue of fact was involved by their claim of prescription; these
two dates were not denied. Therefore their failure to plead it did not constitute waiver.
[G.R. NO. 144568 : July 3, 2007]

GUILLERMA S. SABLAS, joined by her husband, PASCUAL LUMANAS, Petitioners, v. ESTERLITA S. SABLAS and
RODULFO S. SABLAS, Respondents.

Facts:

· The root of this case is when respondents Esterlita Sablas and Rodulfo Sablas filed a complaint for judicial partition,
inventory and accounting against petitioner spouses Pascual and Sablas in RTC Baybay, Leyte.

· Petitioners were served with summons and a copy of the complaint on October 6, 1999. On October 21, 1999, they filed a
motion for extension of time requesting an additional period of 15 days, or until November 5, 1999, to file their answer. However,
they were able to file it only on November 8, 1999.

· The trial court admitted the pleading because no motion to declare petitioner spouses in default was filed.

· The following day, November 9, 1999, respondents filed a motion to declare petitioner spouses in default. It was denied by
the trial court in an order dated December 6, 1999.

· Respondents moved for reconsideration but it was also denied.

· Thereafter, they challenged the December 6, 1999 order in the Court of Appeals in a petition for certiorari alleging that the
admission of the answer by the trial court was contrary to the rules of procedure and constituted grave abuse of discretion
amounting to lack of jurisdiction.

· The appellate court ruled that the trial court committed grave abuse of discretion because, pursuant to Section 3, Rule 9 of
the Rules of Court, the trial court declare petitioner spouses in default when they failed to file their answer on or before
November 5, 1999.

· Thus, the Court of Appeals granted the petition, vacated the December 6, 1999 order and remanded the case to the trial
court for reception of plaintiffs' evidence.

· Aggrieved, petitioner spouses now assail the July 17, 2000 decision of the CA.

Petitioner spouses’ contention:

That the Court of Appeals decision was not in accord with the rules of procedure as it misconstrued Section 3, Rule 9 of the
Rules of Court and was in contravention of jurisprudence.

Issue:

WON the CA misconstrued Section 3, Rule 9 of the Rules of Court - YES

The elements of a valid declaration of default are:

1. The court has validly acquired jurisdiction over the person of the defending party either by service of summons or
voluntary appearance;

2. The defending party failed to file the answer within the time allowed therefor and

3. A motion to declare the defending party in default has been filed by the claiming party with notice to the defending
party.

Ruling:

The court agrees with the Petitioners.

WHERE THERE IS NO MOTION, THERE CAN BE NO DECLARATION OF DEFAULT

Section 3, Rule 9 of the Rules of Court provides:

 SEC. 3. Default: Declaration of. - If the defending party fails to answer within the time allowed therefor, the court shall,
upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending
party in default. x x x. (emphasis supplied)

Three requirements must be complied with before the court can declare the defending party in default:

(1) The claiming party must file a motion asking the court to declare the defending party in default;

(2) The defending party must be notified of the motion to declare him in default and

(3) The claiming party must prove that the defending party has failed to answer within the period provided by the Rules
of Court.

· The rule on default requires the filing of a motion and notice of such motion to the defending party. It is not enough
that the defendant fails to answer the complaint within the reglementary period.

· The trial court cannot motu proprio declare a defendant in default as the rules leave it up to the claiming
party to protect his or its interests.

WHERE THERE IS NO DECLARATION OF DEFAULT, ANSWER MAY BE ADMITTED EVEN IF FILED OUT OF TIME

· It is within the sound discretion of the trial court to permit the defendant to file his answer and to be heard on the
merits even after the reglementary period for filing the answer expires.

· The Rules of Court provides for discretion on the part of the trial court not only to extend the time for filing an
answer but also to allow an answer to be filed after the reglementary period.

Thus, the appellate court erred when it ruled that the trial court had no recourse but to declare petitioner spouses in
default when they failed to file their answer on or before November 5, 1999.

The rule is that the defendant's answer should be admitted where it is filed before a declaration of default and no prejudice is
caused to the plaintiff. Where the answer is filed beyond the reglementary period but before the defendant is declared in default
and there is no showing that defendant intends to delay the case, the answer should be admitted.

Therefore, the trial court correctly admitted the answer of petitioner spouses even if it was filed out of time because, at
the time of its filing, they were not yet declared in default nor was a motion to declare them in default ever filed. Neither
was there a showing that petitioner spouses intended to delay the case.

WHERE ANSWER HAS BEEN FILED, THERE CAN BE NO DECLARATION OF DEFAULT ANYMORE

Since the trial court already admitted the answer, it was correct in denying the subsequent motion of respondents to declare
petitioner spouses in default.

The policy of the law is to have every litigant's case tried on the merits as much as possible. Hence, judgments by default are
frowned upon.

Accordingly, the petition is hereby GRANTED.

The July 17, 2000 decision of the Court of Appeals in CA-G.R. SP No. 57397 is REVERSED and SET ASIDE and

The December 6, 1999 order of the Regional Trial Court of Baybay, Leyte, Branch 14 is REINSTATED. The case is
REMANDED to the trial court for further proceedings.

Rule 9 – Effect of Failure to Plead

Section 3
• Cavili vs. Florendo, 154 SCRA 610, October 09, 1987

FACTS
 ● The private respondents filed a case against petitioners for Partition, Accounting, and Damages.
● Summons was issued to the three petitioners
● 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."
● 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 a judgment by default was promulgated
● 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.
● Atty. Jose P. Alamillo 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.
● 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 insofar as defendant Perfecta Cavili was concerned.
● Judge Vamenta, to whom the case had been assigned after a re-raffle, set aside the order of April 23, 1980
● Their motion for reconsideration having been denied, the defendants, now petitioners, brought the case to this
Court through a petition for certiorari
● Thereafter, in the pre-trial and trial 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.
● The lower court issued an order denying reconsideration of its Order disqualifying Perfecta Cavili dela Cruz as a
witness
● Hence, this petition.

ISSUE:

W/N Perfecta Cavili is disqualified as a witness? NO

RULING

● 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.
● 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.

Rule 9, Sec 3

Pascua vs. Florendo, 136 SCRA 208, April 30, 1985

FACTS:

● Petitioner’s Pascua as plaintiffs, filed a complaint for reconveyance with damages against the private
respondents, spouses Clemente and Juliana Castro. The latter, as defendants, in lieu of filing an answer,
filed a motion to dismiss the complaint on the grounds that the complaint states no cause of action and that
the same is already barred by the statute of limitations.
● Trial court denied the motion of the defendants and subsequently declared the respondents in default for
their having failed to file an answer within the reglementary period. Thus, the petitioners proceeded to
present their evidence ex-parte.
 ● After receiving the petitioners' evidence, the trial court concluded that the action filed by the plaintiff’s having
been filed 22 years after the execution of the deed of sale, has long prescribed.
● The petitioners contend that the trial court acted with grave abuse of discretion when, after hearing their
evidence presented ex-parte, the respondents having been declared in default, it dismissed the case on the
ground that the action had already prescribed
● The petitioners raise as a second issue that the respondent court had no alternative but to grant the relief
prayed for in their complaint as this was evident in the tenor of the summons issued by said court which in
part stated:

... if you fail to appear within the time aforesaid, the plaintiff will take judgment against you by default and
demand from this Court the relief applied for in said complaint. …

ISSUE: WON the respondent court had no alternative but to grant the relief prayed for in the complaint (NO)

HELD:

● Nowhere in the aforequoted provision nor in the summons issued by the respondent court is it stated that
the petitioners are automatically entitled to the relief prayed for, once the respondents are declared in
default.
● Favorable relief can be granted only after the court has ascertained that the evidence offered and the facts
proven by the presenting party, petitioners in this case, warrant the grant of the same. Otherwise, it would be
meaningless to require presentation of evidence if everytime the other party is declared in default, a decision
would automatically be rendered in favor of the non-defaulting party and exactly according to the tenor of his
prayer. This is not contemplated by the Rules nor is it sanctioned by the due process clause.
● In other words, a defaulted defendant is not actually thrown out of court. While in a sense it may be said that
by defaulting he leaves himself at the mercy of the court, the rules see to it that any judgment against him
must be in accordance with law. The evidence to support the plaintiff's cause is, of course, presented in his
absence, but the court is not supposed to admit that which is basically incompetent. Although the defendant
would not be in a position to object, elementary justice requires that only legal evidence should be
considered against him. If the evidence presented should not be sufficient to justify a judgment for the
plaintiff, the complaint must be dismissed. And if an unfavorable judgment should be justifiable, it cannot
exceed in amount or be different in kind from what is prayed for in the complaint.
● In the instant case, from the evidence presented ex-parte by the petitioners and from their very own
allegations, the only judgment that is warranted is the dismissal of the complaint. It is barred by the statute of
limitations