September 9 Assignment

1. What are the remedies available to a party declared in default? 10 pts.

Answer: As provided by law and consistently affirmed on the various cases decided by the Court, the
remedies available to party who has been declared in default are, to wit:

1. A party declared in default may at any time after notice thereof and before judgment, file a
motion under oath to set aside the order of default upon proper showing that:

a. His or her failure to answer was due to fraud, accident, mistake or excusable negligence; and

b. He or she has a meritorious defense.

In such case, the order of default may be set aside on such terms and conditions as the judge may
impose in the interest of justice.

2. If the judgment has already been rendered when the defendant discovered the default, but
before the same has become final and executory, he may file a:

a. Motion for new trial under Sec. 1(a), Rule 37; or

b. An appeal from the judgment as being contrary to the evidence or the law.

3. If the defendant discovered the default after the judgment has become final and executory, he
may file a petition for relief under Rule 38.

These remedies presuppose that the defending party was properly declared in default, but it is
submitted, however, that certiorari will lie when said party was improperly declared in default.

2. Who was declared in default in the case of Lopez vs. Enriquez and why? 10 pts

Answer: The heirs of Eugenio Lopez, Sr., as the petitioners, were declared in default. 

Their motions to consider the deed of sale in the registration as well as to declare void the decrees
and the corresponding certificates of title were filed long after the decision in the land registration
case became final and executory. This being the case, there was insufficiency on their part to give
them standing in the land registration proceedings for purposes of filing an application of a notice of
lis pendens. In view of this, it clearly follows that the filing of the petitioners’ motion to lift the order
of general default can no longer be sustained because a motion to lift the order of general default
should have been filed before entry of final judgment. Hence, the order of default could not be set
aside because the motion was filed out of time.

3. Are the consequences the same for a party who failed to file his Answer and for a party
who failed to appear for pre-trial? 10 pts.

Answer: No, the consequences are different.

If the defending party fails to file an answer within the time allowed, the court shall declare the
defending party in default. Thereupon, the court shall proceed to render judgment granting the
claimant such relief as his or her pleading may warrant, unless the court in its discretion requires the
claimant to submit evidence (Rule 9, Section 3.)

If the defending party fails to appear for pre-trial, the court shall allow the plaintiff to present his or
her evidence ex-parte within ten (10) calendar days from termination of the pre-trial, and the court
to render judgment on the basis of the evidence offered (Rule 18, Section 5.)

Their difference can be pinpointed from the matter involving the rendering of judgement. On one
hand, if the defending party fails to file an answer, the court in its discretion may require the
claimant to submit evidence and not solely rely on the pleading submitted by the same. On the other
hand, if the defending party fails to appear for pre-trial, the court shall render its judgment based on
the evidence offered and presented ex-parte by the plaintiff. In this case, the court cannot exercise
its discretion to require the plaintiff to submit further evidence unlike when the defending party fails
to file an answer within the time allowed.

4. What is the consequence for failing to pay the proper docket fees? 10 pts.

Answer: The failure to pay the proper docket fees would not vests a trial court with jurisdiction over
the subject matter or nature of the action. Since the payment of docket fees is mandatory and
jurisdictional, the court, both in original and appellate cases, cannot acquire jurisdiction over the
case unless the payment of the prescribed docket fees has been made.

Moreover, the failure to pay the proper docket fees may result in automatic dismissal. Any defect in
the original pleading resulting in underpayment of the docket fees cannot be cured by amendment,
such as by the reduction of the claim as, for all legal purposes, there is no original complaint over
which the court has acquired jurisdiction [Manchester v. CA, G.R. No. 75919 (1987)]
 5. Does the 2019 Amendments on the Rules of Civil Procedure still allow amendments of
pleadings to conform to evidence? Why? 10 pts

Answer: No, it no longer allows. As provided by the 2019 Amendments on the Rules of Civil
Procedure, particularly Rule 10 Section 5, “When issues not raised by the pleadings are tried with the
express or implied consent of the parties, they shall be treated in all respects as if they had been
raised in the pleadings. No amendment of such pleadings deemed amended is necessary to cause
them to conform to the evidence.”

In view of the foregoing, unlike with the old rule, it is provided in the 2019 Amendments on the
Rules of Civil Procedure that those issues not raised in the pleadings but have been tried, with the
consent of the parties, shall already be treated as if they had been raised in the pleadings. In effect,
the pleadings need not be amended to conform to evidence because they are deemed amended
already.