SECOND DIVISION

[G.R. No. L-41767. August 23, 1978.]

MR. AND MRS. ROMEO FERRER and ANNETTE FERRER, Petitioners, v. 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.
SYNOPSIS
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.
On petition for mandamus, the Supreme Court affirmed the order and held that actions for damages arising
from tort prescribe in four years; and the circumstance that plaintiffs own allegation in the complaint shows
clearly that the action had prescribed removes the case from the rule regarding waiver of defenses by failure
to plead the same.
SYLLABUS
1. PLEADINGS; PRESCRIPTION; FAILURE TO PLEAD IN THE ANSWER. A complaint may be dismissed in
the course of the proceedings on the ground of prescription, although such defense was not raised in the
answer, where plaintiffs own allegation in the complaint shows clearly that the action had prescribed. Such
circumstance removes this case from the rule under Sec. 2, Rule 9 regarding waiver of defenses by failure to
plead the same.
2. ACTIONS; PRESCRIPTION; DAMAGES BASED ON TORT. Actions for damages arising from tort prescribe
in four (4) years.

DECISION

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:chanrob1es virtual 1aw library
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 oclock 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.
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 afore mentioned 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,
defendants-private 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 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) 24,500.00 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
attorneys fees; and 16) 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 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.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
A Supplemental Motion for Reconsideration 2 was 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 plaintiffs 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. Plaintiffspetitioners accordingly prayed that a writ of execution be issued to enforce the judgment in their favor.
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 on 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 defendants
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., 6 which 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
plaintiffs 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:chanrobles law library : red
"It is true that the defense of prescription can only be considered if the came 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 not obtain when the evidence shows that the cause of action
upon which plaintiffs 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 the answer are deemed waived." We

held therein that." . . the fact that the plaintiffs 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."cralaw virtua1aw library
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, 1976. 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.

SECOND DIVISION
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. law library
The factual background can be briefly stated as follows. l law library
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." virtual law library
On June 7, 1978, the respondent judge issued an Order as aforesaid the text of which reads as follows: law
library
Without considering the issue of jurisdiction raised by the defendant in his motion to dismiss the aboveentitled 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.chanroblesvirtualawlibrarychanrobles virtual law library
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. law library
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. L22675, 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.s virtual law library
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). law library
WHEREFORE, finding the petition to be without merit, the same is hereby dismissal without any special
pronouncement as to costs. SO ORDERED.

FIRST DIVISION
G.R. No. 104846 November 23, 1995
RODRIGO GABUYA represented by his attorney-in-fact LUCIA PONCE, Petitioner, v. 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. law library
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.
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.virtual law library
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.
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. law library
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.s virtual law library
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." 2On 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. ry
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. II1408 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. law library
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 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. law library
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. law library
SO ORDERED.

THIRD DIVISION
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.chanrobles virtual law library
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. library
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." library
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. virtual law library

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. al law library
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.c virtual law library
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. virtual law library
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. library
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.
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 " law library
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. law library
The petitioners, through counsel, moved for a reconsideration of the ruling. law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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. law
library
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. law library
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
non-disqualified 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. law library
The respondents, however, cite Section 2, Rule 18 on Defaults, to wit:chanrobles virtual law library
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. library
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." w library
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. law library
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. w library
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. law library
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. law library
SO ORDERED.

THIRD DIVISION
[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, v. HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA)
ALANIS PACETE, Respondents.

DECISION

VITUG, J.:

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 denying petitioners motion for
extension of time to file their answer in Civil Case No. 2518, in declaring petitioners 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.
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.
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
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 plaintiffs evidence during the
hearings held on 15, 20, 21 and 22 February 1980. law library
On 17 March 1980, the court 3 promulgated the herein questioned decision, disposing of the case, thus
"WHEREFORE, order is hereby issued ordering:

"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;
"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:
"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 45,256 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.
"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.
"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.
"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.
"5. A parcel of land covered by Transfer Certificate of Title No. T-9750, situated at Lika, Mlanng, 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.
"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.
"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.cralawnad
"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. GPW-116188; Chassis No. HOCC-GPW1161-88-C; Type, Jeep;
"d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No. F70MU5-11111; Chassis No. HOCC-GPW1161188-G; Type, Stake;
"e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No. ED300-45758; Chassis No. KB222-22044;
Type, Stake; and
"f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No. LTC-780-Dv; Chassis No. 10F-13582-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
whatever the plaintiff has recovered as attorneys 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 is properly
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:jgc:chanrobles.com.ph
"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."cralaw virtua1aw library
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 v. 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 States 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.

FIRST DIVISION
[G.R. No. 101789. April 28, 1993.]
BHAGWAN RAMNANI, Petitioner, v. 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. (Sec. 2, Rule 41)
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 wifes failure to
attend the pre-trial 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 nonappearance 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.

DECISION

CRUZ, J.:

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. 1
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
(c) That Dizon still owes her P787,495.00;

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. 5
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
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 attorneys fees, and the costs of the suit. 6
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. 8
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 petitioners 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
The respondent court said:chanrob1es virtual 1aw library
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 v. Court of Appeals, 141 SCRA 527). Mere error of judgment cannot be a proper subject of
the special civil action for certiorari (Zapata v. 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 v. Cuaresma, 172
SCRA 415). law library
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.
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." library
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:chanrob1es virtual 1aw library
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: 1aw library
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 wifes 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 nonappearance of the defaulted party. There is no such reason in this case.
The appropriate remedy is an ordinary appeal under Section 2 of Rule 41 of the Rules of Court providing in
part as follows: library
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, 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: 12
It must emphatically be reiterated, since so often is it overlooked, that the special civil action for certiorariis 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:chanrob1es virtual 1aw library
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.
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
attorneys fees to P10,000.00, and disallow the exemplary damages. The rest of the award is approved.y
WHEREFORE, the challenged decision is AFFIRMED as above modified, with costs against the petitioner. It is
so ordered.