RULE 9 – EFFECTS OF FAILURE TO PLEAD DISCUSSION OUTLINE

General effect-

Section 1 provides that the general effect of the failure to plead is that the
defenses or objections not so pleaded in an answer or a motion to dismiss are
deemed waived.

However, if it appears from the pleadings or evidence on record that (a) the
Court has no jurisdiction over the subject matter (b) there is another action
pending between the same parties for the same cause, or (c) the action is barred
by prior judgment or statute of limitations, the court shall dismiss the claim.

Under Section 2, a compulsory counterclaim or a cross-claim not set up shall also

be barred.

Default-

Default is a procedural concept that occurs when the defending party fails to file
an answer within the reglementary period.

Under Section 3, if there is failure to plead within the time allowed, the defendant
may be declared in default upon compliance with the following: (a) the plaintiff
must file a motion to declare the defendant in default (b) serve notice of his
motion to defendant, which must include a notice of hearing (c) at the hearing,
show proof of failure on the part of the defendant to file his answer within the
reglementary period.

A court cannot motu propio declare a defendant in default.

Under the Rules on Summary Procedure, a motion to declare defendant in

default is prohibited. Instead, the court can motu proprio or upon a motion
render judgment as may be warranted by the facts alleged in the complaint and
limited to what is prayed for.

A declaration in default is not an admission of the truth or the validity of the

plaintiff’s claims.

Court action after a declaration in default-

Section 3 gives the court two options: (a) It can proceed to render judgment
granting the claimant such relief as his pleading may warrant, unless, (b) the
court in its discretion requires the claimant to submit the evidence. Such
reception may be delegated to the Clerk of Court, who must be a member of the
Bar. The requirement as to membership in the bar is maintained in Section 9,
Rule 30.

As far as the defaulted defendant Section 3 (a) provides that he is nevertheless

entitled to notice of subsequent proceedings but he shall take part in the trial.
Section 3 (d) provides that the extent of the relief that may be awarded shall not
exceed the amount or be different in kind from that prayed for nor award
unliquidated damages. Hence, even if there is proof to indicate a greater relief,
the court will refrain from awarding it.

Partial default-

Under Section 3 (c) where a pleading asserting a claim states a common cause of
action against several defending parties, some of whom answer while others do
not, the court shall try the cause against all upon the answers thus filed and
render judgment upon the evidence presented.

In Heirs of Mamerto Manguiat, et al. v. Court of Appeals (G.R. No. 150768, August
20, 2008) the court said it is not within the authority of the court to divide a case
by first hearing the case ex parte as against the defaulted defendants and render
a judgment against them, then proceed to hear the case as against the non-
defaulted defendants.

What are the remedies of a defaulted defendant-

The available remedies of a defendant who is declared in default are as follows:

1. Section 3 (b) allows the filing of a Motion to Set Aside Order of Default
under oath, filed at any time after notice of declaration in default and before
judgment. Defendant must show by an Affidavit of Merit stating that failure to file
an answer was due to FAME and that he has a meritorious defense. The court
may then set aside the order of default on such terms and conditions as the judge
may impose in the interest of justice.

2. Motion for New Trial on the ground of FAME if the trial court has
rendered judgment but it has not yet become final.

3. Appeal the judgment by default within 15 days from notice of judgment.

If in the meantime, a motion to set aside order of defendant has been denied, it
can be assigned as an error in the appeal. The non- filing of a motion to set aside
or for a new trial does not bar an appeal.

Rural Bank of Sta. Catalina, Inc. vs. Land Bank of the Philippines (G.R. No.
148019, July 28, 2004) it was held that on appeal, the judgment may be assailed
on the ground that the judgment is excessive or is different in kind from that
prayed for or that the plaintiff failed to prove his material allegations or that the
decision is contrary to law. However, he is prohibited from seeking a reversal or
modification on the basis of evidence submitted before the appellate court, as to
allow it would mean that he is retaining the right to adduce evidence, which he
lost in the trial court.
4. Under Rule 38, by a Petition for Relief from Judgment based on FAME,
provided no appeal has been taken within 60 days from notice and 6 months
from entry of judgment.

5. Under Rule 47, by an Action to Annul Judgment based on extrinsic or

collateral fraud, which is such that a party is induced or prevented from
presenting his case or having a full and fair trial, within 4 years from discovery of
the fraud.

6. Certiorari under Rule 65, if improperly declared in default or motion to

set aside was denied and is tainted with grave abuse of discretion, which is filed
within 60 days from notice or judgment order resolution or 60 days from notice
of the denial of a motion for reconsideration.

Effect of favorable action by the court after a default declaration-

In Republic of the Philippines vs. Sandiganbayan (G.R. No. 148154, December 17,
2007) it was held that despite a declaration in default, the court subsequently
acts on motions for extension or a motion for a bill of particulars, the effect is
that the order of default is deemed lifted. The trial court is not considered to
have acted with grave abuse of discretion.

Where no default lies-

Section 3(e) provides that default does not lie in: (a) annulment of marriage
(b) declaration of nullity of marriage (c) legal separation.

In these instances, the court shall order the solicitor general or his deputized
public prosecutor to investigate whether or not collusion exists, and if there is
none, to intervene for the state in order to see that the evidence is not
fabricated.1

There is also no default in: (a) expropriation, and (b) forcible entry, illegal
detainer and the other actions covered by the Rules on Summary Procedure.

1
Supra, Section 3 (e), Rule 9