Rule 9. Effect If Failure To Plead

Question 1

What is the effect of failure to please?

Answer 1

Gen. Rule: Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived.
Exceptions: Grounds which are not deemed waived
1. Lack of jurisdiction over the subject matter
2. Litis Pendentia
3. Res judicata
4. Prescription (Statute of Limitations)

Question 2

FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM OR CROSS-CLAIM

Answer 2

Rule: A compulsory counterclaim or cross-claim, not set up at the time the defending party files his answer, shall be barred.

Question 3

Remedies of the Defending Party who failed to set up a compulsory

Answer 3

1. Amended answer - if the counterclaim or cross-‘claim already existed at the time the original answer was filed on the grounds of oversight, inadvertence, or excusable neglect.
2. Supplemental Answer -if the counterclaim or cross-claim matured or is acquired after the answer is filed.

Question 4

When is there default?

Answer 4

This occurs when the defending party fails to file his Answer within the reglementary Period.

Question 5

WHEN DECLARATION OF DEFAULT IS PROPER

Answer 5

1. Summons has been validly and previously served upon him;
2. Defendant fails to answer within the time allowed:
3. There must be proof of such failure to answer;
4. There must be a motion to declare the defendant in default:
   a. Notice to the defendant by serving upon him a copy of such motion b. Hearing of the motion to declare the defendant in default

Question 6

Can a court declare a motion propionate defendant in default?

Answer 6

The court has no authority to motu proprio declare a defendant in default. A motion to declare the defendant in default

Question 7

EFFECT OF AN ORDER OF DEFAULT

Answer 7

The court may, upon its discretion:
1. Proceed to render judgment; or
2. Require the plaintiff to present evidence ex parte. The reception of evidence may
be done by the court or delegated to the clerk of court.

Question 8

Effect of Order of Default to the Defending Party

Answer 8

A party in default shall be entitled to notices of subsequent proceedings but shall not take part in the trial.

Question 9

RIGHTS OF A PARTY DECLARED IN DEFAULT

Answer 9

A party declared in default is entitled to notice of: 1. Motion to declare him in default;
2. Order declaring him in default;
3. Subsequent proceedings; and
4. Service of final orders and judgments.

Question 10

RELIEF FROM AN ORDER OF DEFAULT

Answer 10

1. After notice of order and before judgment - the defendant must file a motion to set aside order of default under oath and show that:
   ● a. The failure to answer was due to FAME; and
   ● b. That the defendant has a meritorious defense (Affidavit of Merit)
2. After judgment becomes final and executory - file a:
   ● a. Petition for relief of judgment under Rule 38; or
   ● b. Annulment of judgment under Rule 47
3. Relief for Improvident Declaration of Default - Petition for Certiorari under Rule
   ● 65. (Aerospace University vs. CHED, G.R. No. 139371, 2001)

Question 11

When is there Partial Default?

Answer 11

A: (a) the default asserting a claim states a common cause of action against several defending parties, (b) some of the defending parties answer and the others failed to do so, and (c) the answer interposes a common defense.

Question 12

ACTIONS WHERE DEFAULT NOT ALLOWED

Answer 12

1. Annulment of marriage
2. Declaration of nullity of marriage
3. Legal separation
4. Special civil actions of certiorari, prohibition and mandamus where a comment
5. instead of an answer is filed; and
6. Summary procedure and small claims cases.