Rule 9

- Effect of failure to plead

a. Failure to plead defenses
- deemed waived
-however, 1) when it appears from the pleadings or evidence on record that the
court has no jurisdiction over the subject matter, 2) that there is another action pending
between the same parties for the same cause, or 3) the action is barred by a prior
judgement or by a statute of limitations. THE COURT SHALL DISMISS THE CLAIM.

b. Failure to plead compulsory counterclaim and cross-claim

- shall be barred
- If due to oversight, inadvertence, excusable neglect, etc. the compulsory
counterclaim, with leave of court, may be set up by amendment before judgment. [Rule
11, Sec. 10]

For Cross-Claims: A cross-claim is always compulsory. A cross-claim not set up shall be

barred. [Rule 9, Sec. 2]

- Default- Failure of the defendant to answer within the proper period. It is not his failure
to appear nor his failure to present evidence
a. When to declare a defendant in default
- If the defending party fails to answer within the time allowed
- Upon motion of the claiming party
- notice to the defending party
- proof of such failure
- Then court will declare the defending party in default
- Unless the court in its discretion requires the claimant to submit evidence
which may be delegated to the clerk of court

When a Declaration of Default is Proper:

There is only one instance when a party defendant can properly be declared in
default and that is when he fails to file his answer within the reglementary period, or
within such extended time as he is allowed by the court, under Sec. 1, Rule 18

DUAL STAGES OF DEFAULT

1. Declaration of Order of Default – when defendant fails to answer within the time
specified in the rules, the court shall, upon motion of the plaintiff and proof of such
failure, declare defendant in default

2. Rendition of Judgment by Default – thereafter, on the basis of the allegation of the

complaint or after receiving plaintiff’s evidence, the court shall render judgment
granting him such relief as the complaint and the facts proven may warrant
 b. Effect of an order of default
- A party in default shall be entitled to notice of subsequent proceedings but
shall not take part in the trial

1. The court shall proceed to render judgment granting the claimant such relief
as his pleading may warrant; or in its discretion
2. Shall require the claimant to submit evidence;
3. Loss of standing in court of the defaulting party – meaning he cannot appear
therein, adduce evidence and be heard nor take part in the trial
4. Defendant is still entitled to notices of subsequent proceedings
a. A defendant declared in default
cannot take part in the trial, but he cannot be disqualified from testifying
as a witness in favor of non-defaulting defendants. [Cavili v. Florendo
(1987)]
b. A party in default is entitled to notice of:
(1) Motion to declare him in default;
(2) Order declaring him in default;
(3) Subsequent proceedings;
(4) Service of final orders and judgments.

5. A defending party declared in default retains the right to appeal from the
judgment by default. However, the grounds that may be raised in such an appeal
are restricted to any of the following:
a. The failure of the plaintiff to prove the material allegations of
the complaint;
b. The decision is contrary to law; and
c. The amount of judgment is excessive or different in kind from
that prayed for. [Ortero v. Tan (2012)]

c. Relief from order of default

- a party in default may at any time after noticer and before judgement , 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
valid or meritorious defense. In these cases. The order of default may be set aside on such
terms and conditions as the judge may impose in the interest of justice.

Partial Default - When the complaint states a common cause of action against several
defendants some of whom answers and some of them do not, the court should declare
defaulting defendants in default, and proceed to trial on answers of others
If the defense is personal to the one who answered, it will not benefit those who did not
answer
 d. Extent of Relief
- a judgement rendered against a party in default shall not exceed the amount or
be different in kind from that prayed for nor award unliquidated damages.
a) 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
b) If the claim is not proved, the case should be dismissed
c) As held in Datu Samad Mangelen v. CA (1992): In a judgment based on
evidence presented ex parte, judgment should not exceed the amount or be different in
kind from that prayed for.
d) On the other hand, in a judgment where an answer was filed but defendant
did not appear at the hearing, the award may exceed the amount or be different in kind
from that prayed for.

e. Actions where default are not allowed

- 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.

Actions Where Default is NOT allowed:

1. An action for annulment or declaration of nullity of marriage
2. For legal separation
3. Special civil actions of certiorari,
prohibition and mandamus where comment instead of an answer is required to be filed
4. Summary procedure