116. CARMELITA TAN and RODOLFO TAN VS.

COURT OF APPEALS et al
[G.R. No. L-22793, May 16, 1967]
Facts:
At first, petitioners, thru their mother as guardian ad litem, sued respondent T
an for acknowledgment and support. The first civil case was dismissed on the gro
und that parties have already come to an amicable settlement.1 year and eight mo
nths thereafter, petitioners, this time thru their maternal grandfather as guard
ian ad litem, commenced the present action before the Juvenile & Domestic Relati
ons Court for acknowledgment and support, involving the same parties, cause of a
ction and subject matter.The case was again dismissed by reason of res judicata
and insufficiency of evidence.On appeal, petitioners contends that the testimony
of their witnesses, who were unable to testify in the 2nd trial must be admissi
ble, applying Rule 130 Sec 47. Notably, the witnesses were subpoenaed by the Juv
enile & Domestic Relations Court a number of times. But, they did not appear to
testify. These witnesses were neither dead nor outside of the Philippines.
Issue:
WON witnesses' testimonies in the former trial within the coverage of the rule o
f admissibility intended for witnesses of the class unable to testify.
Held:
NO. They cannot be categorized as witnesses of the class unable to testify. The
witnesses in question were available. They refused to testify and not prevented
to do such. Certainly, they do not come within the legal purview of those unable
to testify. To emphasize, subsequent failure or refusal to appear thereat [seco
nd trial] do not amount to inability to testify. To be qualified, such inability
should proceed from a grave cause, almost amounting to death, as when the witne
ss is old and has lost the power of speech.