Effect of Failure to Plead Flashcards
What if a party fails to plead defenses and objection in their motion to dismiss or in their answer?
Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived.
However, the court must dismiss the claim 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
(c) the action is barred by prior judgment
What if a compulsory counter-claim or cross-claim is not set up?
A compulsory counter-claim, or cross-claim not set up shall be barred.
How is a party declared to be in default? What is the effect?
A defending party is declared to be in default by the court if he fails to answer within the time allowed, and upon motion of the claiming party with notice to the defending party, and proof of such failure.
The court may proceed to render judgment, and the party in default shall be entitled to notices of the proceedings but cannot take part in the trial.
What is the remedy of a party in 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 failure to answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense.
