1. The general effect of the failure to plead is that the defenses / objections not so pleaded in an Answer or a Motion to Dismiss are deemed waived.
1.1 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. 270
These defenses are not barred if not set up
2. A compulsory counterclaim or a cross-claim not set up shall also be barred. Note that this is in consonance with the requirement of the Rules that a 271
compulsory counterclaim or cross claim existing at the time of the filing of the answer must be contained therein but if it arises after the filing of an answer, it 272
may be set up in a supplemental pleading before judgment or if failure is due 273
to oversight, inadvertence, excusable neglect or when justice requires, it may be set up by amendment with leave of court before judgment. 274
WHAT RESULTS IF DEFENDANT / DEFENDING PARTY FAILS TO ANSWER WITHIN THE TIME ALLOWED
1. 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. 275
1.1 A court cannot motu propio declare a defendant in default.
Supra, Section 12, Rule 8
269
Supra, Section 1, Rule 9
270
Supra, Section 2, Rule 9
271
Supra, Section 8, Rule 11
272
Supra, Section 9, Rule 11
273
Supra, Section 10, Rule 11
274
Supra, Section 3, Rule 9
2. Default is a procedural concept that occurs when the defending party fails to file his answer within the reglementary period.
2.1 It does not occur from the failure of the defendant to attend the pre-trial, where absence is a cause for the court to order presentation of evidence ex- parte or at the trial, where absence will be construed as a waiver to assail the evidence against him or is a waiver of the right to adduce evidence.
2.2 Note the exceptions to the concept that default is triggered by the failure of the defending party to file the required answer, as a default judgment has been held to lie if (a) a party refuses to obey an order requiring him to comply with the various modes of discovery , or (b) if a party or managing agent of a party 276
willfully fails to appear before the officer who is to take his deposition. 277
3. It is an error to declare a defendant in default where an answer has already been filed. 278
4. Note that the rule is different if covered by the Rules on Summary Procedure, where a motion to declare defendant in default is prohibited. 279
4.1 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. 280
5. A declaration in default is not an admission of the truth or the validity of the plaintiff’s claims. 281
ONCE DECLARED IN DEFAULT
1. The court has two options,it: (a) 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.
Supra, Section 3 (c), Rule 29
276
Supra, Section 5, Rule 29
277
Cathay Pacific Airways v. Romillo, Jr., 141 SCRA 451
278
Section 19 (h), 1991 Rules of Summary Procedure
279
Section 6, II, 1991 Rules of Summary Procedure
280
Monarch Insurance v. Court of Appeals, 333 SCRA 7
2. 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. 282
2.1 Hence, even if there is proof to indicate a greater relief, the court will refrain from awarding it.
3. The defaulted defendant is nevertheless entitled to notice of subsequent proceedings but he cannot take part in the trial. 283
4. Effect of Partial Default, 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. 284
4.1 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. 285
WHAT ARE THE REMEDIES OF A DEFAULTED DEFENDANT
1. The available remedies of a defendant who is declared in default are as follows:
1.1 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
1.2 Motion for New Trial on the ground of FAME if the trial court has rendered judgment but it has not yet become final
1.3 Appeal the judgment by default, not the order as it is interlocutory, and cannot be appealed, within 15 days from notice of judgment.
Note that 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.
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
Supra, Section 3 (d), Rule 9, Vlason v. Court of Appeals, 310 SCRA 26
282
Supra, Section 3 (a), Rule 9
283
Supra, Section 3 (c), Rule 9
284
Heirs of Mamerto Manguiat, et al. v. Court of Appeals, G.R. No. 150768, August 20, 2008
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. 286
1.4 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. 287
1.5 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.
1.6 Certiorari, 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. 288
2. If 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. 289
CASES WHERE NO DEFAULT LIES
1. In the following cases, default does not lie: (a) annulment of marriage (b) declaration of nullity of marriage (c) legal separation (d) expropriation, and (e) forcible entry, illegal detainer and the other actions covered by the Rules on Summary Procedure.
1.1 Regarding items (a) to (c), the court shall order the prosecuting attorney to investigate whether or not collusion exists, and if there is no collusion, to intervene for the state in order to see that the evidence so presented is not fabricated. 290