RULE 9: EFFECT OF FAILURE TO PLEAD

Section 1: Defenses and Objections Not Pleaded

General Rule: Defenses and objections not pleaded in the answer are deemed waived.
Exceptions:

P 1. Prescription of the action.

L 2. Litis pendentia. (another action pending between the same parties for the same cause)
J 3. Lack of Jursidiction over the subject matter
R 4. Res judicata. (the action is barred by a prior judgment or by statute of limitations)

The presence of ANY of these 4 grounds authorizes the court dismiss the claim.

Note: These grounds are also the exceptions to the Omnibus Motion Rule under Rule 15 Sec. 8.
General Rule: Lack of Jurisdiction over the subject matter may be raised at any stage of the proceedings,
even for the first time on appeal.
Exception: Estoppel by laches. (Failure to take legal action until the party is prejudiced by the delay.

Section 2: Compulsory Counterclaim or cross claim, not set-up barred.

The bar refers to a compulsory counterclaim (or cross-claim) that a defending part has at the time he
files the answer. (i.e a counterclaim already existing at the time the answer is filed.
Note: A permissive counterclaim however will not be barred.

Reason behind S2 R9:

To achieve resolution of the whole controversy at one time and in one action and to avoid
multiplicity of suits.

Note: Compulsory counterclaim or cross-claim that a defending party has at the time he files his answer
shall be contained therein.

Remedy of a party if he fails to set up his counterclaim or cross-claim in the answer:

When a pleader fails to set up a counterclaim or a cross-claim through Oversight, Inadvertence,
or Excusable neglect, or when Justice requires (JOIE), he may, by leave of court, set up the counterclaim
or cross-claim by amendment before judgment.
Section 3. Default; Declaration of Default.

Default – is a procedural concept that occurs when the defending party fails to file his answer within the
time allowed. It does not occur from the failure of the defendant to attend either the pre-trial or the
trial.

Ground:
Failure or default of the defendant to file a responsive pleading within the reglementary period.
Effect/Action of the court after declaration of default:
a. It allows the court to proceed to render judgment granting the claimant such relief as his
pleading may warrant, or
b. the court in its discretion requires the claimants to submit evidence.

***such reception of evidence may be delegated to the clerk of court.

Note: Non-appearance of defendants at an ordinary hearing and to adduce evidence does not constitute
default, when they have already filed their answer to the complainant within the reglementary period.

Reason:
a. A declaration or order of default is issued as a punishment for unnecessary delay in joining
the issues.
b. It is frowned upon because of the policy of the law to hear every litigated case on the
merits.

Two stages of default:

1. Declaration of order of default;
2. Rendition of judgment by default;

General Rule:
A default order and consequently a default judgment are triggered by the failure of the
defending party to file the required answer. (with exception)

Exception: Judgment by default for refusal to comply with the modes of discovery.
*** A judgment by default may be rendered in the following cases despite an answer having been filed:
1. If a disobedient party refuses to obey an order requiring him to comply with the various modes
of discovery;
2. If a party or officer or managing agent of a party willfully fails to appear before the officer who is
to take his deposition or a party fails to serve answers to interrogatories.

Consequence if the plaintiff fails to file a motion to declare the defendant in default after a long period of
time:
 *The court may dismiss the case under Sec. 3 of Rule 17 for failure to prosecute. The dismissal is
with prejudice and will bar the plaintiff from filing a subsequent complaint based on the same cause
against the same defendant.
Elements of a valid declaration of default:
J 1. The court has validly acquired Jurisdiction over the person of the defending party either by service of
summons or voluntary appearance.
A 2. The defending party failed to file the Answer within the time allowed;
M 3. A Motion to declare the defending party in default has been filed by the claiming party with notice
to the defending party.

Effect of Declaration/Order of Default (Sec. 3 (a) )

1. A party in default shall be entitled to notices of subsequent proceedings.
2. A party in default loses his standing in court and such loss prevents him from taking part in trial.
Note:
Being declared in default, and thereby losing one’s standing, do not constitute a waiver of all
rights; what is waive only is the right to be heard and to present evidence during the trial while default
prevails. A party in default is still entitled to notice of final judgments and proceedings taken subsequent
thereto and he may be cited and may testify as a witness.

Relief from order of default (Sec. 3 (b) )

1. A party declared in default may at any time after notice, file a motion under oath to set aside
the order of default upon showing that his or her failure to answer was due to:
Fraud
Accident
Mistake
Excusable negligence
and that he or she has a meritorious defense.
2. 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.

Effect of partial default (Sec. 3 (c) )

1. The court will try the case against all defendants upon the answer of some EXCEPT where the
defense is personal to the one who answered, in which case, it will not benefit those who did
not answer.

What is partial default?

1. The pleading asserting a claim states a common cause of action against several defending
parties;
2. Some of the defending parties answer and the others fail to do so;
3. The answer interposes a common defense.

Extent of relief to be awarded (Sec. 3 (d) )

A judgment rendered against a party in default shall not: (EDU)
1. Exceed the amount prayed for.
2. Be Different in kind from that prayed for; nor
3. Award Unliquidated damages.

Where no defaults allowed (Sec. 3 (e) ) ANS4

1. Annulment of marriage.
2. Declaration of Nullity of marriage.
3. Legal Separation.
4. In Special civil actions for certiorari, prohibition, and mandamus where a comment instead of an
answer is required to be filed.
5. Small claims cases.
6. Summary procedure.

Effect of Failure to file an Answer in Marriage Related Cases:

The court shall order the Solicitor General or his or her deputized public prosecutor:
1. To investigate whether or not a collusion between the parties exists,
2. If there is no collusion, to intervene for the State in order see to it that the evidence submitted is
not fabricated.

Remedies of a party who fails to file an answer and/or is declared default?

1. Before notice of order of default. File a motion to admit answer giving a justifiable cause for the
delay in the filing of the answer.
2. After order of default but before judgment. File a motion under oath to set aside the default
order upon proper showing that his failure to answer was due to Fraud, Accident, Mistake or
Excusable negligence and that he has a meritorious defense.
3. After judgment but before it becomes final. File a motion for new trial on the ground of FAME
under Rule 37. If denied, the defendant may appeal within 15 days from receipt of the order
denying the motion for new trial.
4. After judgment becomes final. File a petition for relief under Rule 38. If the defendant was
improvidently or wrongly declared in default he may move to set aside the judgment by way of
a special civil action for certiorari.
5. After period to file a petition for relief has lapsed. File a petition for annulment of judgment
based on extrinsic fraud under Rule 47.

Pleadings may be amended by

Adding or striking out an allegation, name of any party, correcting a mistake in the name of a party or
correcting a mistaken or inadequate allegation or description in any other aspect.