CAVILI VS FLORENDO Private respondents filed a civil case with the CFI of Negros Oriental against petitioners for

r Partition, Accounting, and Damages. The case was raffled to ranch I presided over !" #udge Augusto $. %illarin& summons was issued to the ' petitioners, all at a"awan Negros Oriental which was the address indicated in the complaint. After tr"ing to effect service, the process server went !ac( to the court with the following return of service to )uirino and Primitivo Cavili not contacted, according to Perfecta Cavili, su!*ect persons is sta"ing in +a!ang(alan, Negros Occidental Att". #ose P. Alamino filed a motion for e,tension to answer in !ehalf of the defendants, manifesting the representation of his client Perfecta Cavili that she will inform her !rothers Primitivo and )uirino a!out the case. Defendants, failed to file their answer within the re-uest period and upon motion of the plaintiffs, the defendants were declared in default on Octo!er ., /010. 2ecords however show that a 3anifestation was filed !" Att". #ose P. Alamino informing the court that since he never met Primitivo and )uirino Cavili, who are residents of another province, he desisted from further appearing in the case in their !ehalf. Decem!er /010 & Att". Alamillo filed a motion for new trial in !ehalf of the defendants on grounds of lac( of *urisdiction and, with a meritorious defense that the properties sought to !e partitioned have alread" !een the su!*ect of a written partition agreement !etween the direct heirs of the late ernardo Cavili who are the predecessors of the parties in this case. #ul" /04/ 5 after a re&raffle of the case, #udge Cipriano %amenta whom the case had !een assigned, directed the e,ecution of the Octo!er ., /010 6declaration of default7 decision without -ualification ruling that the petitioners8 remed" should have !een appeal rather than new trial. Their motion for reconsideration having !een denied. The defendants, now petitioners, !rought the case to this Court through a petition for certiorari. Oct. /049 5Petition for certionari was granted At the pre&trial : trial & defendants, 6now petitioners7, presented Perfecta Cavili dela Cru; as their /st witness. The respondents moved for her dis-ualification as a witness on the ground that having !een declared in default, Perfecta Cavili has lost her standing in court and she cannot !e allowed to participate in all premise the even as a witness. The court, through the respondent *udge, sustained the respondents8 contention and dis-ualified her from testif"ing.

There is no provision of the 2ules dis-ualif"ing parties declared in default from ta(ing the witness stand for non&dis-ualified parties. The law does not provide default as an e,ception. The specific enumeration of dis-ualified witnesses e,cludes the operation of causes of disa!ilit" other than those mentioned in the 2ules. ?eneral 2ule@ where there are e,press e,ceptions, these comprise the onl" limitations on the operation of a statute and no other e,ception will !e implied. The 2ules should not !e interpreted to include an e,ception not em!odied therein. 2. WHETHER OR NOT PETITIONERS (PRIMITIVO & QUIRINO) ARE IN DEFAULT AND HAVE LOST STANDING IN COURT. NO. $ection 9 of 2ule /4 & =ffect of order of default. A =,cept as provided in section 0 of 2ule /', a part" declared in default shall not !e entitled to notice of su!se-uent proceedings nor to ta(e part in the trial.The" advance the argument that to allow Perfecta Cavili to stand as witness would !e to permit a part" in default Bto ta(e part in the trial.B An e,planation of the 2ule is in order. Coss of standing in court is the conse-uence of an order of default. Thus, a part" declared in default is considered out of court and cannot appear therein, adduce evidence, and !e heard and for that reason he is not entitled to notice. Dowever, Bloss of pendingB must !e understood to mean onl" the forfeiture of one8s rights as a part" litigant, contestant or legal adversar". A part" in default loses his right to present his defense, control the proceedings, and e,amine or cross&e,amine witnesses. De has no right to e,pect that his pleadings would !e acted upon !" the court nor ma" he o!*ect to or refute evidence or motions filed against him. There is !"hi # i "he r$%e& h!'e(er& 'hi)h )! "e*+%,"es , -is.$,%i/i),"i! "! 0e , 'i" ess !r , !++! e " i , ),se. De/,$%" -!es !" *,1e hi* , i )!*+e"e ". A part" in default ma" thus !e cited as a witness !" his co&defendants who have the standing and the right to present evidence which the former ma" provide. The incidental !enefit giving the part" in default the opportunit" to present evidence which ma" eventuall" redound to his advantage or !ring a!out a desired result, through his co&defendants, is of minor conse-uence. Of greater concern or importance in allowing the presence of Perfecta Cavili as a witness in the case at !ar, is the preservation of the right of petitioners )uirino and Primitivo Cavili to secure the attendance of witnesses and the production of evidence in their !ehalf. To re*ect Perfecta Cavili8s presentation of testimonial evidence would !e to treat Primitivo and )uirino, as if the" too were in default. There is no reason wh" the latter should also !e made to !ear the conse-uences of Perfecta8s omission. 3oreover, we cannot deprive )uirino and Primitivo of the onl" instrument of proof availa!le to them, as Perfecta alone has !een in possession and administration of the claim. Petition is here!" ?2ANT=D.

/. WHETHER OR NOT PERFECTA CAVILI IS DISQUALIFIED AS A WITNESS NO. $ection /4 of 2ule /'< . Witnesses; their qualifications. =,cept as provided in the ne,t succeeding section, all persons who, having organs of sense, can perceive, and perceiving, can ma(e (nown their perception to others, ma" !e witnesses. Neither parties nor other persons interested in the outcome of a case shall !e e,cluded> nor those who have !een convicted of crime> nor an" person on account of his opinion on matters of religious !elief.