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n that the trial court has jurisdiction to direct, in its discretion,

CAGUIAT, and APOLONIA CAGUIAT that a deposition shall not be taken, if there are valid reasons for so ruling.
DEFENDANT: THE HONORABLE GUILLERMO E. TORRES and FRANCISCO CAGUIAT (Cojuangco v. Caluag, L-7952, July 30, 1955, unreported) That the right of a party to
DATE: October 31, 1969
take depositions as means of discovery is not exactly absolute is implicit in the
TOPIC: RULE 23 provisions of the Rules of Court cited by appellants themselves, sections 16 and 18 of
Rule 24, which are precisely designed to protect parties and their witnesses,
Facts: whenever in the opinion of the trial court, the move to take their depositions under the
guise of discovery is actually intended to only annoy, embarrass or oppress them. In
Petitioners are plaintiffs in Civil Case No. 8050 of the Court of First Instance of Rizal, such instances, these provisions expressly authorize the court to either prevent the
Branch VIII, presided over by respondent Judge, while respondent Francisco Caguiat taking of a deposition or stop one that is already being taken.
is the defendant therein
In the case at bar, aside from having practically disclosed all his evidence at the pre-
After defendant had filed his answer with counterclaim, and the plaintiffs, their reply to trial, appellee expressed willingness to enter into a stipulation of facts, which offer,
defendant's answer the herein petitioners served on respondent Caguiat a notice to appellants rejected. Moreover, according to Court of Appeals, the parties herein filed
take his deposition. On August 26, 1964 respondent Caguiat filed with the lower court a joint motion for hearing on the merits even before the orders in question were
an urgent motion to prevent the taking of the deposition or to restrict its scope which issued. Under these circumstances, it is inevitable to conclude that there was indeed
urgent motion the petitioners opposed. On the 29th of the same month the no further need for the deposition desired by appellants. It could have served no
respondent Judge issued an order to hold in abeyance the resolution of his co- useful purpose, for there was nothing anymore to discover. Appellants have not
respondent's urgent motion until after the pre-trial. The parties however failed to arrive shown any real concrete reason for such deposition.
at an amicable settlement.

On October 3, 1964 herein petitioners again served on respondent Caguiat a second

notice for the taking of his deposition upon oral examination to prevent which, the
latter filed an urgent motion on the 14th of the same month. Petitioners opposed
respondent Caguiat's urgent motion. Resolving the urgent motion and the opposition
thereto, the respondent Judge, on the 17th, granted his co- respondent's urgent
motion and ordered the petitioners to refrain from taking the contemplated deposition.
Petitioner's motion for reconsideration was denied.

The petitioners' avowed purpose in securing the deposition of respondent Caguiat is

to get the latter to lay his cards on the table and/or to simplify or abbreviate the
proceedings. Respondent Caguiat, on the other hand, affirms that he has already
revealed practically his entire defense, even to the extent of naming his witnesses,
during the pre-trial, so that the necessity of a deposition has been obviated. In fact,
according to respondent Caguiat, he had expressed willingness to enter into a
stipulation of facts, but apparently the petitioners did not want to. According to CA, the
fact that the controverted orders were issued only after the pre-trial supports that
Respondent Caguiat has revealed his defenses during the trial and that the judge was
satisfied of such revelation therefore no need for deposition. CA also claimed that the
petitioners were satisfied of such defense for they filed a joint motion for hearing on
the merits even before the orders in question were issued.

Issue: Is there still a need for deposition of respondent?

Held: No.

Appellants contend that the disclosure by appellee of practically all his evidence at the
pre-trial and the danger of heightening the animosities between the parties during the
proposed taking of the deposition of appellee are not enough to warrant the trial
court's order preventing completely the taking of said deposition. Such contention is
PLAINTIFF: ALFREDO P. ROSETE, OSCAR P. MAPALO and CHITO P. ROSETE and Chito Rosete In Default; and (3) For Reception of Plaintiffs Evidence Ex-
DATE: June 8, 2006
 Petitioners filed with the Court of Appeals a Petition for Certiorari and
TOPIC: RULE 24-28 Prohibition
 The lower court: (1) ordered the striking out from the record of the Answer ex
FACTS: abudanti cautela filed by petitioners Mapalo and Chito Rosete for their
 Respondents, Juliano Lim and Lilia Lim, filed a case for annulment, specific continued unjustified refusal to be sworn pursuant to Rule 29 of the 1997
performance with damages against AFP Retirement and Separation Benefits Rules of Civil Procedure; (2) declared defendants Mapalo and Chito Rosete
System (AFP-RSBS), Espreme Realty and Development Corporation in default; and I allowed plaintiffs to present their evidence ex-parte as
(Espreme Realty), Alfredo P. Rosete, Maj. Oscar Mapalo, Chito P. Rosete, regards the latter.
Bank of the Philippine Islands (BPI), and Register of Deeds of the Province  Petitioners filed an Urgent Ex-parte Omnibus Motion (1) For
of Mindoro Occidental Reconsideration; (2) To Lift Order of Default; and (3) To Hold In Abeyance
 It asked, among other things, that the Deed of Sale executed by AFP-RSBS Presentation of Plaintiffs Evidence Ex-parte. The day after, petitioners filed
covering certain parcels of lands in favor of Espreme Realty and the titles an Amended Omnibus Motion
thereof under the name of the latter be annulled and be ordered to restore  Petitioner’s Omnibus motion was denied thus filed a Certiorari case in the
ownership and title of said lands to respondents. CA but was also denied
 Petitioners filed a MTD on the grounds that the court has no jurisdiction over
the subject matter of the action or suit and that venue has been improperly ISSUE:
 A supplemental MTD was separately filed by Rosete, AFP-RSBS, Espreme WON the taking of their oral depositions should not be allowed without leave of court
Realty, and, BPI which Respondents opposed as no answer has yet been served and the issues have not yet been joined because
 All the MTDs were denied by the court; BPI filed its Answer with Compulsory their answers were filed ex abudanti cautela
Counterclaim and Cross-claim; Respondents also filed a Motion to Serve
Supplemental Allegation against BPI and petitioner Chito Rosete which the HELD: NO.
trial court granted Section 1 of Rule 24 of the ROC, it is evident that once an answer has been served,
the testimony of a person, whether a party or not, may be taken by deposition upon
 Petitioners filed a certiorari in CA contending the denial of their MTDs
oral examination or written interrogatories. In the case before us, petitioners contend
 They likewise informed the trial court that they filed an Ex-Parte Motion to
they have not yet served an answer to respondents because the answers that they
Admit Answers Ex Abudanti Cautela
have filed with the trial court were made ex abudanti cautela. In other words, they do
 Rosete filed his Supplemental Answer (Ex Abudanti Cautela) not consider the answers they filed in court and served on respondents as answers
 Respondents filed a Notice to Take Deposition Upon Oral Examination contemplated by the Rules of Court on the ground that same were filed ex abudanti
giving notice that on June 18 and 20, 1997 at 9:00 a.m., they will cause the cautela.
deposition of petitioners Oscar Mapalo and Chito Rosete
 Petitioners filed an Urgent Ex-Parte Motion and Objection to Take We find petitioners contention to be untenable. Ex abudanti cautela means out of
Deposition Upon Oral Examination. They argued that the deposition may not abundant caution or to be on the safe side. An answer ex abudanti cautela does not
be taken without leave of court as no answer has yet been served and the make their answer less of an answer. A cursory look at the answers filed by
issues have not yet been joined since their Answer was filed ex abudanti petitioners shows that they contain their respective defenses. An answer is a pleading
cautela, pending resolution of the Petition for Certiorari challenging the in which a defending party sets forth his defenses and the failure to file one within the
orders dated 12 March 1996 and 24 May 1996 that denied their Motions to time allowed herefore may cause a defending party to be declared in default. Thus,
Dismiss and for Reconsideration, respectively. petitioners, knowing fully well the effect of the non-filing of an answer, filed their
 Moreover, they contend that since there are two criminal cases pending answers despite the pendency of their appeal with the Court of Appeals on the denial
before the City Prosecutors of Mandaluyong and Pasig City involving the of their motion to dismiss.
same set of facts as in the present case wherein respondent Juliano Lim is
the private complainant and petitioners are the respondents, to permit the Petitioners argument that the issues of the case have not yet been joined must
taking of the deposition would be violative of their right against self- necessarily fail in light of our ruling that petitioners have filed their answers although
incrimination because by means of the oral deposition, respondents would the same were made ex abudanti cautela. Issues are joined when all the parties have
seek to establish the allegations of fact in the complaint which are also the pleaded their respective theories and the terms of the dispute are plain before the
allegations of fact in the complaint-affidavits in the said criminal cases. court. In the present case, the issues have, indeed, been joined when petitioners, as
 Lower court denied petitioners motion to take deposition upon oral well as the other defendants, filed their answers. The respective claims and defenses
examination, and scheduled the taking thereof of the parties have been defined and the issues to be decided by the trial court have
 Respondents filed an Omnibus Motion: (1) To Strike Out Answer of been laid down.
Defendants Mapalo and Chito Rosete; (2) to Declare Defendants Mapalo
We cannot also sustain petitioners contention that the lower court erred when it said
that the joinder of issues is not required in order that Section 1, Rule 23 of the ROC
may be availed of. Under said section, a deposition pending action may be availed
of: (1) with leave of court when an answer has not yet been filed but after jurisdiction
has been obtained over any defendant or property subject of the action, or (2) without
leave of court after an answer to the complaint has been served. In the instant case,
the taking of the deposition may be availed of even without leave of court because
petitioners have already served their answers to the complaint.


It is clear, therefore, that only an accused in a criminal case can refuse to take the
witness stand. The right to refuse to take the stand does not generally apply to parties
in administrative cases or proceedings. The parties thereto can only refuse to answer
if incriminating questions are propounded. This Court applied the exception a party
who is not an accused in a criminal case is allowed not to take the witness stand in
administrative cases/proceedings that partook of the nature of a criminal proceeding
or analogous to a criminal proceeding. It is likewise the opinion of the Court that said
exception applies to parties in civil actions which are criminal in nature. As long as the
suit is criminal in nature, the party thereto can altogether decline to take the witness
stand. It is not the character of the suit involved but the nature of the proceedings that

In the present controversy, the case is civil it being a suit for Annulment, Specific
Performance with Damages. In order for petitioners to exercise the right to refuse to
take the witness stand and to give their depositions, the case must partake of the
nature of a criminal proceeding. The case on hand certainly cannot be categorized as
such. The fact that there are two criminal cases pending which are allegedly based on
the same set of facts as that of the civil case will not give them the right to refuse to
take the witness stand and to give their depositions. They are not facing criminal
charges in the civil case. Like an ordinary witness, they can invoke the right against
self-incrimination only when the incriminating question is actually asked of them. Only
if and when incriminating questions are thrown their way can they refuse to answer on
the ground of their right against self-incrimination.
PLAINTIFF: LOURDES CAMUS DE LOPEZ, on her behalf and as guardian ad litem of the with the only purpose of annoying him or wasting the time of the other parties. In such
minors, SALVADOR C. LOPEZ, JR., and LUIS CARLOS LOPEZ case, the court may, on motion, order that the deposition shall not be taken. Or, a
DEFENDANT: HON. CIRILO G. MACEREN, Judge of the Court of First Instance of Davao, party may designate a distinct place for the taking of a deposition, and the adverse
party may not have sufficient means to reach that place, because of poverty or
LOPEZ, RODOLFO LOPEZ and the guardian ad litem for the minor FLORDELIZ LOPEZ,
DATE: August 31, 1954 otherwise, in which case the court, on motion, may order that the deposition be taken
PONENTE: CONCEPCION, J at another place, or that it be taken by written interrogatories. The party serving the
TOPIC: RULE 29 notice may wish to inquire into matters the disclosure of which may oppressive or
FACTS embarrassing to the deponent, especially if the disclosure is to be made in the
 Petitioner Lourdes Camus de Lopez, on her behalf and as guardian ad litem of presence of third persons, or, the party serving the notice may attempt to inquire into
her minor children, Salvador C. Lopez, Jr., and Luis Carlos Lopez filed a case matters which are absolutely private of the deponent, the disclosure of which may
before the CFI against Respondents Maria N. Vda. de Lopez, Enrique Lopez, affect his interests and is not absolutely essential to the determination of the issues
Salvador Lopez, Jr., Leopoldo Lopez, Rodolfo Lopez and Flordeliz Lopez to involved in the case. Under such circumstances, the court, on motion, may order "that
secure delivery of some property of the deceased Salvador Lopez, Sr., as certain matter shall not be inquired into or that the scope of the examination shall be
alleged share of the petitioner, who claims to be his widow. limited to certain matters, or that the examination shall be held with no one present
 She contends that, although his previous marriage with respondent Maria N. de except the parties to the action and their officers or counsel, or that after being sealed
Lopez, which was unknown to petitioner, had not been dissolved and was still the deposition shall be opened only by order of the court, or that secret processes,
subsisting, and acting in bad faith, and without advising petitioner of such first developments, or research need not be disclosed, or that the parties shall
marriage, Salvador Lopez, Sr., wedded the latter and thereafter, lived as simultaneously filed specific documents or information enclosed in sealed envelopes
husband and wife with her; and that, as a consequence of said union, Salvador to be opened as directed by the court." In other words, this provision affords the
C. Lopez, Jr., and Luis Carlos Lopez were born in Manila and then christened as adverse party, as well as the deponent, sufficient protection against abuses that may
legitimate children of Salvador Lopez, Sr. and the petitioner, as set forth in their be committed by a party in the exercise of his unlimited right to discovery. As a writer
respective birth and baptismal certificates. said "Any discovery involves a prying into another person's affairs — a prying that is
 After filing an answer of the defendants, petitioner through her counsel filed a quite justified if it is to be a legitimate aid to litigation, but not justified if it is not to be
"notice for the taking" of her deposition and that of one Pilar Cristobal, at Room such an aid." For this reason, courts are given ample powers to forbid discovery
202 of the Vasquez Building, 1865 Azcarraga Street, Manila, on January 16, which is intended not as an aid to litigation, but merely to annoy, embarrass or
1954, at 2:00 p.m. oppress either the deponent or the adverse party, or both
 Acting, however, upon an urgent motion of the defendants in said Civil Case,
respondent Hon. Cirilo C. Maceren, as Judge of First Instance of Davao, issued It is not claimed that the order complained of sought to avert any of the evils which
an order prohibiting the taking of said deposition. Accordingly, petitioner instituted said section 16 was meant to prevent or arrest. Moreover, petitioner was permitted to
the present case for the purpose of annulling said order and of having no institute and maintain Civil Case as a pauper. As such, she cannot afford to meet the
restraint to the taking of the aforementioned deposition. expenses to make, with her witnesses, the trip or trips from Manila to Davao, and to
 Petitioner maintains that respondent Judge committed a grave abuse of stay in said province for the time necessary for the hearing of the case, which might
discretion in forbidding the taking of said deposition, she being entitled thereto as not take place on the first date set therefor. Hence, the order in question tended, in
a matter of right, without leave of court, after the filing of the answer of the effect, to deprive her, not only of her right, under section 1 of Rule 18, to take the
defendants under section 1 of Rule 18 of the Rules of Court deposition in question, but also, of the opportunity to prove her claim and,
 On the other hand, respondents invoke, in their favor, section 16 of the same rule consequently, of the due process guaranteed by the Constitution. Upon the other
which explicitly vests in the court the power to "order that the deposition shall not hand, the records indicate that the defendants in Civil case No. 1035 — who are the
be taken" and, this grant connotes the authority to exercise discretion in widow of Salvador Lopez, Sr. and their legitimate children — must be well-off
connection therewith financially, for the estate of the deceased Salvador Lopez, Sr., which has already
been partitioned among them, appears to be worth approximately half a million pesos.
ISSUE: WON petitioners is correct? - YES. The main reason given in support of the contested order is that, if the deposition were
HELD: It is well-settled, however, that the discretion conferred by law is not unlimited; taken, the court could not observe the behaviour of the deponents. The insufficiency
that it must be exercised, not arbitrarily, capriciously or oppressively, but in a of this circumstance to justify the interdiction of the taking of a deposition becomes
reasonable manner and in consonance with the spirit of the law, to the end that its apparent when we consider that, otherwise, no deposition could ever be taken, said
purpose may be attained. Referring to the objective of section 16 of Rule 18 of the objection or handicap being common to all depositions alike. In other words, the order
Rules of Court, former Chief Justice Moran has the following to say: of respondent Judge cannot be sustained without nullifying the right to take
depositions, and, therefore, without, in effect repealing section 1 of Rule 18 of the
The advisory committee of the United States Supreme Court said that this provision is Rules of Court, which, clearly, was not intended by the framers of section 16 of the
intended to be one of the safeguards for the protection of the parties and deponents same rule.
on account of the unrestricted right to discovery given by section 1 and 2 of this Rule.
A party may taken the deposition of a witness who knows nothing about the case,
It is, consequently, clear that a grave abuse of discretion was committed by (5) Mendioro assigned his shareholdings in P-14 Arrastre Services, Inc., to defendant
respondent Judge in issuing the aforesaid order for which reason the same should be, Henry Chiongbian on December 20, 1974.
as it is hereby annulled and set aside, with cost against the respondents, except the
Hon. Cirilo C. Maceren. March 30, 1978 – During the hearing, Counsel for the petitioners failed to show up.
Mendioro was allowed to present evidence ex-parte.
CHIONGBIAN July 20,1978 – an amended order of the trial court granted the petitioners an
DEFENDANT: HON. MANUEL V. ROMILLO, JR., Presiding Judge, Court of First Instance opportunity to adduce their evidence. Protracted and lengthy trials were conducted
of Rizal, Branch 37; CITY SHERIFF OF PASAY CITY and LEONCIO C. MENDIORO, until May 22, 1981.
DATE: May 28, 1988
PONENTE: GUTTIERREZ, JR., J September 11, 1981 – RTC rendered decision against petitioners. Ordered
defendants (Lee et al) jointly and severally, to deliver to the former the amount of
P859,981.53 representing the unspent amounts for salaries and for rentals for
FACTS: handling equipment after deducting the actual and legitimate expenses for both items,
with interests of 14% per annum from May 30,1974 until such time as actual delivery
May 6, 1975 – private respondent filed a complaint for accounting with damages of the same shall have been made by defendants to plaintiff and to pay such amounts
docketed as a civil case in the CFI of Rizal at Pasay City, based on a contract for as equivalent to 20% of the total amount due — principal and interests at the time of
arrastre services at Pier 14, North Harbor, Manila executed between Mendioro and actual payment—for attorney's fees. The counterclaims of defendants are hereby
William Lines, Inc., represented by Benito Chiongbian, in the Memorandum dismissed for lack of merit. Defendants are, likewise, ordered to pay costs.
Agreement dated July 28, 1973.
October 6, 1981 – copies of RTC decision mailed to the petitioners' counsel at William
Substantial allegations in the complaint: Lines Building, Pier 14, North Harbor, Manila.
(1) In 1973 August 1 to November 30, Mendioro conducted arrastre operations at Pier
14 as per contract with William Lines, Inc.; October 9,19 and 22,1981 – the first, second and third notices of the registered mail
(2) All the income from the arrastre operations during the said period were received were delivered respectively to the guard-on-duty at counsel's offices but the mailed
and held in trust for Mendioro by defendants Lee, Tan and Chiongbian who were also decision remained unclaimed at the post office despite the proper notices.
tasked with the disbursement of the said income for operational expenses;
(3) Defendants Lee, Tan and Chiongbian were duty-bound to turn over to plaintiff November 26, 1981 – an urgent ex-parte motion for execution was granted and the
Mendioro the income they held in trust for him; and corresponding writ of execution was issued. A notice of garnishment was further
(4) They failed to do so despite Mendioro's repeated demands. issued to certain banks.
June 16, 1975 – the defendants Lee, etc. filed a motion to dismiss of complaint. MTD The petitioners' subsequent motion to set aside the judgment and to quash recall the
denied. They filed an answer July 28, 1975. writ of execution with prayer for a restraining order dated December 1, 1981 was
January 28, 1977 – the trial court granted the motion to include Jose (3) Millares
Cesar Almario and Henry Chiongbian as indispensable parties. Millares did not file an In a special civil action for certiorari and prohibition with restraining order and/or
answer. Almario voluntarily appeared and manifested that he was joining Mendioro as preliminary injunction filed with the Court of Appeals, the petitioners questioned the
co-plaintiff. issuance by the respondent judge of the order dated November 26, 1981.
April 15, 1977 – Henry Chiongbian filed his answer with counterclaim CA dismissed the petition for lack of merit and set aside the writ of preliminary
injunction it had earlier issued.
December 12, 1977 – At the pre-trial stage of the proceedings, parties filed partial
stipulation of facts: July 10, 1982 – the instant petition was filed with SC on October 4, 1982 - denied for
(1) plaintiff Mendioro operated the arrastre services from August 1, 1973 to November being unmeritorious.
30,1973 at Pier 14 under a contract which he had with Wilham Lines, Inc;
(2) from said operations, a total gross income of P l,620,985.47 was derived and December 20, 1982 – MR granted, parties required to submit separate memorandas.
(3) defendants Lee, Tan and Benito Chiongbian were in-charge of collecting said ISSUE/S:
income; 3. Whether or not the judgment against the petitioners was premature in the absence
(4) after November 30,1973, P-14 Arrastre Services, Inc., a corporation registered on of a formal accounting to be made by the petitioners.
August 15, 1973 of which Mendioro was one of its incorporators, took over the 4. Whether or not the lower court's decision was validly served on the petitioners, and
operations at Pier 14, and

3rd Issue:

The petitioners contend that since the complaint of the private respondent was one for
accounting with damages, the lower court could not and should not have rendered a
money judgment without first ordering them to submit a formal document captioned
"Accounting." - The trial court found the amount due to Mendioro as P859,981.53
after deducting the actual and, legitimate expenses for salaries and rentals of
handling equipment. In lieu of the document referred to by the petitioners, the trial
court relied on the evidence presented in court in a span of three years (from 1978 to
1981) during which time all the parties were afforded the chance to adduce their
evidence. The absence of said formal document and the reliance on testimonial and
documentary evidence adduced during trial are explained by the trial court as follows:
o After hearing the testimony of defendants' witness Nestor Caylo who categorically
stated that the documents, vouchers, receipt and other papers which are needed to
substantiate the accounting he made were no longer available, to order defendants to
render an accounting would be an exercise in futility. After all, plaintiff has, as already
found above, satisfactorily established the amount which remained unspent after
deducting the actual and legitimate expenses.

4th Issue:

The petitioners dispute the application of Rule 13, Section 8 of the Revised Rules of
Court to their case alleging that the public respondent gravely abused his discretion in
issuing the questioned writ of execution on a mere technicality. They further allege
that if, in any case the lower court's judgment is valid, the gross negligence and
incompetence of their counsel then in failing to claim in the mails his claim of the
decision should not be taken against them. - In the instant case, there is proof that
copies of the lower court's decision were mailed to the petitioners' counsel at the
address on record, the William Lines Building, Pier 14, North Harbor, Manila on
October 6, 1981; that first, second and third notices of said registered mail were
delivered on October 9, 19 and 22, 1981, respectively to the guard-on-duty at
counsel's offices; and that petitioners' counsel failed to claim the mailed decision at
the post office. These facts indicate a correct application of the aforequoted provision
whereby the law create a presumption of valid service once there is a failure on the
part of the addressee to claim his mail as required despite the receipt of the proper
notices. - It is a well settled rule that when a party is represented by counsel, notice
should be made upon the counsel of record at his given address appearing in the
counsel's entry of appearance, to which notices of all kinds emanating from the court
should be sent in the absence of a proper and adequate notice to the court of a
change of address (Cubar v. Mendoza, 120 SCRA 768; and Lopez v. De los Reyes,
31 SCRA 214). The court cannot be expected to take judicial notice of the new
address of a lawyer who has moved or to ascertain on its own whether or not the
counsel of record has been changed and who the new counsel could possibly be or
where he probably resides or holds office.