CHAPTER SIX: EFFECT OF FAILURE TO PLEAD

EFFECT OF FAILURE TO PLEAD

WAIVER OF DEFENSES AND OBJECTIONS

RULE 9
EFFECT OF FAILURE TO PLEAD

Section 1. Defenses and objections not pleaded. – Defenses and objections not pleaded either in a motion to
dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence
on record that the court has no jurisdiction over the subject matter, that there is another action pending
between the same parties for the same cause, or that the action is barred by a prior judgment or by statute
of limitations, the court shall dismiss the claim. (1)

Grounds by which the court can dismiss a case motu proprio (in relation to Section 3, Rule 17)
a. Res judicata;
b. Litis pendentia;
c. Lack of jurisdiction over the subject matter;
d. Statute of limitations;
e. Failure of any party to appear for the presentation of evidence in chief;
f. Plaintiff’s failure to prosecute his action for an unreasonable length of time;
g. Plaintiff’s failure to comply with the Rules or any order of the court;
h. Rule on Summary Procedure.

Section 2. Compulsory counterclaim, or cross-claim, not set up barred. – A compulsory counterclaim, or a

cross-claim, not set up shall be barred. (2)

DEFAULT

Section 3. Default; [d]eclaration of. – If the defending party fails to answer within the time allowed therefor,
the court shall, upon motion of the claiming party with notice to the defending party, and proof of such
failure, 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. Such reception of evidence may be delegated to the clerk of court.

a. Effect of order of default. – A party in default shall be entitled to notice[s] of subsequent

proceedings but shall not take part in the trial.

b. Relief from order of default. – 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 his or her failure to answer was due to fraud, accident, mistake or excusable negligence and
that 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.

c. Effect of partial default. – When a pleading asserting a claim states a common cause of action
against several defending parties, some of whom answer and the others fail to do so, the court shall
try the case against all upon the answers thus fi led and render judgment upon the evidence
presented.

d. Extent of relief to be awarded. – A judgment rendered against a party in default shall [neither]
exceed the amount or be diff erent in kind from that prayed for nor award unliquidated damages.

e. Where no defaults allowed. – If the defending party in an action for annulment or declaration of
 nullity of marriage or for legal separation fails to answer, the court shall order the Solicitor General
or his or her deputized public prosecutor, to investigate whether or not a collusion between the
parties exists, and if there is no collusion, to intervene for the State in order to see to it that the
evidence submitted is not fabricated. (3a)
.

Should the defendant fail to file his response within Should the defendant fail to file his response within
the required period, and likewise fail to appear at the the required period but appears at the date set for
date set for hearing hearing

Court shall render judgment on the same day as Court shall ascertain what defense he has to offer and
warranted by the facts proceed to hear, mediate or adjudicate the case on the
same day as if a response has been filed.
●Environmental cases
➜Motion to declare the defendant in default is a prohibited motion.
➜Should the defendant fail to answer within the period provided, the court shall declare the defendant in default
and upon motion of the plaintiff, shall receive evidence ex part and render judgment based thereon and the reliefs
prayed for.
Note that it is the court which shall on its own motion declare the defendant in default.
●Writ of amparo
➜Motion to declare the defendant in default is a prohibited motion.
➜Upon the service of the Writ of Amparo, the respondent is required to file a verified written return which, among
others, contains his lawful defenses. In case the respondent fails to file a return, the court, justice or judge shall
proceed to hear the petition ex parte.
●Writ of habeas data
➜Filing of a nation to declare the respondent in default is not allowed
➜If the respondent fails to file his return which contains, among others, his lawful defenses, the court, judge, justice
or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant
unless the court in its discretion requires the petitioner to submit evidence.
●Summary procedure
➜Motion to declare the defendant in default is a prohibited motion.
➜The defendant who fails to file an answer within the reglementary period is not supposed to be declared in default.
Instead, the court motu proprio, or on motion of the plaintiff, shall render judgment (not to declare the defendant in
default) as may be warranted by the facts alleged in the complaint and limited to what is prayed for.
This represents a principal distinction between default in regular civil proceedings and the rule on summary
procedure.

Effect of a declaration/order of default

●The party declared in default loses his standing in court. The loss of such standing prevents him from taking part in
the trial.
●While the defendant can no longer take part in the trial, he is nevertheless entitled to notices of subsequent
proceedings. It is submitted that he may participate in the trial, not as a party but as a witness.
●A declaration of default is not an admission of the truth or the validity of the plaintiff’s claims.

Effect of partial default

●When a pleading asserts a claim against several defending parties and some file and serve their answers but the
others do not, the court shall try the case against all the defending parties based on the answers filed and render
judgment upon the evidence presented where the claim states a common cause of action against them.

Action of the court after the declaration/order of default

a. To proceed to render judgment granting the claimant such relief as his pleading may warrant; or
b. To require the claimant to submit to his evidence ex parte.
●The choice of which action to take is a matter of judicial discretion.

Court not required to receive evidence personally

●The court need not personally receive the evidence if it decides to hear the evidence of the plaintiff. The reception of
the evidence may be delegated to the clerk of court.
Admission of answer filed out of time a matter of sound discretion of the trial court
●It is within the sound discretion of the trial court to permit the defendant to file his answer and to be heard on the
merits even after the reglementary period for filing the answer expires. The discretion not only to extend the time for
filing an answer but also to allow an answer to be filed after the reglementary period.
●It is not correct to say that a trial court has no recourse but to declare a defending party in default when he fails to
file an answer within the required period. The rule is that the defendant’s answer should be admitted where it is filed
before a declaration of default and no prejudice is caused to the plaintiff.
●Where the answer is filed beyond the reglementary period but before the defendant is declared in default and
there is no showing that the defendant intends to delay the case, the answer should be admitted.
●Default judgments are generally disfavored.

REMEDY AGAINST ORDER; REMEDY AGAINST JUDGMENT

Remedies of a defending party declared in default

●Remedy after notice of order and before judgment
➜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 and properly show that:
a. The failure to answer was due to fraud, accident, mistake, or excusable negligence (FAMEN); and that
b. He has a meritorious defense, i.e., there must be an affidavit of merit.
●Remedy after judgment and before judgment becomes final and executory
➜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 motion for new trial under Rule 36.
➜He may also appeal from the judgment as being contrary to the evidence or the law.
●Remedy after the judgment becomes final and executory
➜The defendant may file a petition for relief from judgment under Rule 38.
➜Where the defendant has however, been wrongly or improvidently declared in default, as when a timely answer
has been served and filed, the court can be considered to have acted with grave abuse of discretion amounting to
lack of jurisdiction, an act correctable by a petition for certiorari under Rule 65.

Situation Remedy

After notice of order and before judgment File a motion under oath to set aside the order of
default and properly show that: (a) failure to answer was
due to FAMEN; and (b) he has a meritorious defense

After judgment and before judgment becomes final File a motion for new trial under Rule 36

File an appeal from the judgment as being contrary to

the evidence or the law

Appeal by certiorari to SC under Rule 45

After judgment becomes final and executory File a petition for relief from judgment under Rule 38

Timely answer has been served and filed but defendant File a petition for certiorari under Rule 65 as the court
has been wrongly declared in default can be considered to have acted with grave abuse of
discretion amounting to lack of jurisdiction

Current judicial trend on defaults

●Avoid defaults, and thus, courts are enjoined to be liberal in setting aside orders of default.
●The issuance of orders of default should be the exception rather than the rule and to be allowed only in clear cases
of obstinate refusal by the defendant to comply with the orders of the trial court because suits should, as much as
possible, be decided on the merits and not on technicalities.
●Judgments by default are frowned upon. A case is best decided when all contending parties are able to ventilate
their respective claims, present their arguments and adduce evidence in support thereof.

Implied lifting of the order of default

●May a default order be impliedly lifted?
Yes. The court's act of granting respondent the opportunity to file a responsive pleading meant the lifting of the
default order on terms the court deemed proper in the interest of justice. It was the operative act lifting the default
order and thereby reinstating the position of the original defendant whom respondent is representing, founded on
the court's discretionary power to set aside orders of default.
●A motion to lift a default order requires no hearing; it need be under oath only and accompanied by an affidavit of
merits showing a meritorious defense, and it can be filed at any time after notice thereof and before judgment. Thus,
the act of the court in entertaining the motions to file a responsive pleading during the pre-trial stage of the
proceedings effectively meant that respondent has acquired a locus standi in this case.
Failure to file a motion to lift a default order is not procedurally fatal as a defaulted party can even avail of other
remedies mentioned above.

Extent of relief in a judgment by default

●A judgment rendered against a party in default shall not exceed the amount or be different in kind from that
prayed for nor award unliquidated damages.

Cases where a declaration/order of default cannot be made

●Default is not allowed in the following actions:
a. Annulment of marriage;
b. Declaration of nullity of marriage; and
c. Legal separation.
●If no answer is filed in any of the above actions, the court shall order the Solicitor General or his or her deputized
public prosecutor, to investigate whether or not a collusion between the parties exists, and if there is no collusion, to
intervene for the State in order to see to it that the evidence submitted is not fabricated.

Judgment by default for refusal to comply with the modes of discovery

●GR: A default order and consequently a default judgment is triggered by the failure of the defending party to file
the required answer.
XPN: A judgment by default may be rendered in the following cases despite an answer having been filed:
a. If a disobedient party refuses to obey an order requiring him to comply with the various modes of discovery;
or
b. 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.

CHAPTER SEVEN: AMENDED AND SUPPLEMENTAL PLEADINGS

AMENDMENTS

RULE 10
AMENDED AND SUPPLEMENTAL PLEADINGS

Section 1. Amendments in general. – Pleadings may be amended by adding or striking out an allegation or
the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate
allegation or description in any other respect, so that the actual merits of the controversy may speedily be
determined, without regard to technicalities, in the most expeditious and inexpensive manner. (1a)