Manner of Making Allegations in the Pleadings Flashcards
How should the capacity of the party to sue or be sued be averred in the pleading?
A party desiring to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued shall do so by specific denial.
What is the rule if an action or defense is based on a document?
Such written instrument or document must be attached to the pleading as an exhibit.
To contest such documents, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts.
The requirement of an oath is not necessary if the adverse party is not a party to the document or when compliance of an order for an inspection of the original instrument is refused.
How to aver a specific denial?
A defendant must specify each material allegation of fact the truth of which he or she does not admit, and whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial.
Where a defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment made to the complaint, he shall so state, and this shall have the effect of a denial.
What if the defendant would not specifically deny an allegation?
Material averments in a pleading asserting a claim or claims, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied.
How are affirmative defenses raised?
A defendant shall raise his affirmative defense in his answer, which shall be limited on the following grounds:
(a) Court has no jurisdiction over the person of the defending party
(b) The venue is improperly laid
(c) The plaintiff has no legal capacity to sue
(d) The plaintiff asserting the claim has no cause of action
(e) A condition precedent for filing the claim has not been complied with
What is the effect if the defendant fails to raise an affirmative defense?
Failure to raise the affirmative defenses at the earliest opportunity shall constitute a waiver.
What is the effect if an affirmative defense is denied?
If affirmative defenses is denied, it cannot be the subject of a motion for reconsideration or petition for certiorari, prohibition or mandamus, but may be among the matters to be raised on appeal after a judgment on the merits.
