G.R. No. 61570 February 12, 1990.
RUPERTO FULGADO, substituted by his heirs, JULIANA, JOSE, MAXIMO, PACITA and SEVERO all surnamed FULGADO, petitioners, vs. HON. COURT OF APPEALS, RUFINO CUSTODIO, SIMPLICIA CUSTODIO, ARSENIO PIGUING, ISMAEL PORCIUNCULA and DOMINGA MACARULAY, respondents.

FACTS

Petitioner Ruperto Fulgado filed an action for annulment of sale and partition. Private respondents were declared in default for failing to appear on time at the pre-trial. The trial court allowed Fulgado to present evidence ex parte. Respondents moved to lift the order of default, but the trial court denied it and later rendered a decision in Fulgado’s favor. On appeal, the Court of Appeals set aside the decision and remanded the case, granting respondents the right to cross-examine the witnesses who had already testified and allowing Fulgado to present additional evidence. This decision became final in 1974.
Upon remand, the case faced multiple postponements. Ruperto Fulgado died in 1975, and his witness, Jose Fulgado, had migrated abroad. When the case was finally heard, petitioners stated they had no additional evidence. Respondents then moved to strike the testimonies of the two witnesses, arguing they were deprived of their right to cross-examine as Ruperto was dead and Jose was abroad. The trial court granted the motion and dismissed the complaint. The Court of Appeals affirmed this dismissal.

ISSUE

Whether the trial court and the Court of Appeals erred in striking the ex parte testimonies and dismissing the complaint due to the alleged deprivation of the right to cross-examine.

RULING

Yes. The Supreme Court reversed the decisions. The right to cross-examine, while fundamental, can be waived or forfeited by a party’s own inaction or negligence. The records showed that private respondents had ample opportunity to exercise their right after the case was remanded. They filed a motion to set the case for hearing over a year after the remand order became final. Despite knowing of Ruperto Fulgado’s advanced age, they did not promptly schedule his cross-examination. Their failure to act diligently constituted laches, resulting in a forfeiture of their right.
Regarding witness Jose Fulgado, respondents’ counsel disclosed during a hearing that Jose was in the country for a visit, yet they made no effort to subpoena him. This further demonstrated a waiver. The wholesale exclusion of the testimonies was a grossly inflexible remedy that unjustly prejudiced the petitioners, whose only fault was the witness’s death. The proper course was to admit the direct examination, as the loss of cross-examination was due to respondents’ own fault and was not a material loss warranting total exclusion. The case was reinstated and ordered for priority hearing.