VILLACERAN, Kent-Kent R.

Section JD-E CIVPRO

4. RULE 9 Cavili vs. Florendo, G.R. No. 73039, October 9, 1987

Facts:
The respondents filed a case against petitioners for Partition, Accounting, and Damages.
Summons was issued to the petitioners, however, the process server went back to the court with the
following return of service to Quirino and Primitivo Cavili not contacted.

The lawyer of Perfecta Cavili filed for motion of extension to answer for Perfecta and her
brothers, however, they failed to file it and upon motion of the respondents, the petitioners were
declared in default. Upon denial, the petitioners brought the case to the Supreme Court for certiorari
which grant their petition. Quirino and Primitivo presented Perfecta as their first witness but moved her
disqualification as a witness on the ground that having been declared in default. They advance the
argument to allow Perfecta Cavili to stand as witness to permit a party in default "to take part in the
trial."

Issue:
Whether Perfecta, being declared in default, is disqualified to be a witness.

Ruling:
No. The Court held that a witness takes no active part in the contest of rights between the
parties.

A 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. The presence of Perfecta
Cavili as a witness is the preservation of the rights of Quirino and Primitivo Cavili to secure the
attendance of witnesses and the production of evidence in their behalf.

Hence, the decision disqualifying Perfecta Cavili is set aside.