Civ Pro - Rule 9 (Effect of Failure to Plead) Flashcards
what are the requisites of a defending party to be declared in default
- court has JD over the person of the defendant
- Defending party failed to answer within the period provided by the RC
- motion from the petitioner declaring party at default
- Claiming party proves that defendant failed to answer within the period provided by the RoC
- Defending party must be notified of the motion to declare him in default
- a hearing of the motion to declare in default initiated by the court
===================================1. The court has validly acquired jurisdiction over the person
of the defending party, either by service of summons or
voluntary appearance.
2. The defending party must have failed to answer within
the period provided by the Rules of Court.
3. The claiming party must file a motion to declare the defending party in default.
4. The claiming party must prove that the defending party has failed to answer within the period provided by the
Rules of Court.
5. The defending party must be notified of the motion to
declare him in default.
a. In accordance with due process
6. There must be a hearing of the motion to declare the
defending party in default.
a. To give the opportunity to the defendant to
explain his side
what are the reliefs from an order of default?
AFTER NOTICE | BEFORE JUDGEMENT
1. under oath motion to set aside order of default provided that failure to answer was due to [FAMEN] AND has a meritorious defense in the affidavit of merit
AFTER JUDGEMENT | BEFORE JDG IS FINAL & EXECUTORY
a. motion for new new trial
b. appeal from judgement contrary to evidence or law
AFTER JDG IS FINAL & EXECUTORY
a. petition for relief from judgement
b. action for nullity of judgement
CERTIORARI
- Court acted in excess of its JD or without JD (declare in default if answer filed ex)
- improvidently declared in default
==================================
1. Remedy after notice of order and before judgment:
a. Motion to set aside order of default, showing that
(a) the failure to answer was due to fraud,
accident, mistake, or excusable negligence, and
(b) the defendant has a meritorious defense there must be an affidavit of merit.
- Remedy after judgment but before finality:
a. Motion for new trial under Rule 37
b. Appeal from the judgment as being contrary to the
evidence or the law - Remedy after judgment becomes final and executory:
a. Petition for relief from judgment under Rule 38
b. Action for nullity of judgment under Rule 47 - If the order of default is valid, certiorari is not available. If the default order was improvidently issued, that is, the defendant was declared in default, without a motion, or without having served with summons before the
__ is a procedural concept that occurs when the defending party fails to file his answer within the reglementary
period
default
__ is issued as a punishment for unnecessary delay in joining issues
declaration/order of default
generally, courts cannot motu proprio declare the defendant in default except..
for Environmental Cases
It was held that the defendant who files his answer in time, but failed to serve a copy thereof upon the adverse party, may validly be declared in default. What remedies does the defn’ have?
This failure is not, however, fatal because the declaration of default may be set aside by a timely and proper motion with the requisite affidavit of merit AND provided no
loss of time occurs
what are the effects of a declaration/order of default?
- loses his standing in the case (can’t participate)
- right to receive notices of subsequent pleadings but shall not take part in trial
- declaration of default does not mean an admission of the truth OR validity of plaintiff’s claims
- declaration of default doesn’t automatically mean trial court will render a judgement in favor of the plaintiff automatically.
effects of partial default
cases where there are several defendants who have the same cause of action against such, non-answering defendants will be declared in default while those filed their answer won’t be
action of the court after the declaration/order of default
the court, by discretion, may choose to do either of the ff:
- require claimant to submit evidence of ex parte
- proceed to render judgment granting the claimant such relief as his pleading may warrant.
defn intends to file his answer but the reglementary period has expired. what are his remedies
motion for extension of not more than 30 c.days
what are the limitations for a motion for extension when submitting an answer beyond the reglementary period?
- motion for extension is only once (1)
- not more than 30 c.days
- only permitted for ‘answers’
because of the judicial trend on deciding cause based on merit and not on technicality, an answer under oath containing the defenses ofthe
defendant, may, under the rules on liberal interpretation, be deemed as the equivalent of a(n)
affidavit of merit
May a default order be impliedly lifted?
in the case of President Marcos who was declared in default, his son filed a motion for leave to file a responsive pleading.
the court ruled, ‘ xxx the anti-graft court’s act of granting respondent opportutnity to file a responsive pleading *meant lifting of the default order xxx”
complainant seeks to recover 1M. defn’ was declared in default and has lost his standing in the cause Later discovered, complainant has right to recover 2M, does the court have authority to grant?
no because under the rules
judgement renderd against a party in default SHALL NOT exceed the amount or be different in kind from that prayed for nor unliquidated damages
cases where declaration/order of default canNOT be made
annulment of marriage
declaration of nullity of marriage and
legal separation
