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RULE 9 EFFECT OF FAILURE TO PLEAD

Defenses and objections not pleaded either in a motion to dismiss or in the answer are
deemed waived (Sec. 1).
Exceptions (same grounds for motu proprio dismissa !" t#e court$%
&' Lack of jurisdiction over the subject matter
(' Litis pendencia
)' Action is barred by prior judment
*' !rescription
Dismissa of t#e compaint does not carr" +it# t#e dismissa of t#e
countercaim if
&' "he counterclaim was pleaded by the defendant prior to service to him of the notice
of dismissal#
(' "he dismissal was due to the fault of the plainti$.
Compusor" Countercaim
%t refers to one which a defendant must interpose to prevent it from bein barred in a
subse&uent' separate action.
%t is au(iliary or ancillary to the case. %t does not re&uire for its adjudication the
presence of third parties of whom the court cannot ac&uire jurisdiction.
Permissi,e ,s Compusor" Countercaim
Permissi,e Compusor"
Docket and other lawful fees should be paid# )o docket fee is paid#
Accompanied by a certi*cate aainst forum+
shoppin and certi*cate to *le action from
the Lupon#
Such certi*cates not re&uired#
)ot barred even if not set up in the answer# ,arred if not raised in the answer#
%nitiatory pleadin# Au(illiary or ancillary to the main action#
)eeds to be answered otherwise party may
be declared in default.
%f compulsory counterclaim reiterates special
defenses that are deemed controverted even
without a reply' or raises issues which are
deemed automatically joined by the
alleations of the complaint' need not be
answered.
%f it raises issues not covered by the
complaint' should be answered.
%f counterclaim is based on actionable document attached to or copied in the
counterclaim' the enuineness and due e(ecution of the instrument shall be deemed
admitted -)L.SS the adverse party speci*cally denies under oath its enuineness and
due e(ecution.
Cross-caim
A cross+claim not set+up in the action is barred (Sec. /).
E.ect of dismissa of compaint to cross-caim%
&' %f cross+claim is purely defensive' the cross+claim is also dismissed.
(' %f cross+claim seeks a0rmative relief' the cross+claim is )1" dismissed.
/rounds under +#ic# defending part" ma" !e decared in defaut
1. "he defendin party failed to answer within the time allowed therefore#
/. "he defendin party failed to furnish a copy of the answer to the claimin party.
Decaration of Defaut
A declaration of default cannot be made by the court motu proprio# there must be a
motion to that e$ect.
+ %f no motion to declare defendant in default is *led' the complaint should be
dismissed for failure to prosecute.
+ A notice of the motion to declare the defendin party in default should be served
upon the defendin party.
2ourts should not be too harsh in declarin a party in default especially when it has
actual notice of valid reasons that prevented said party from answerin.
+ 2ourts should be liberal in settin aside order of default for default judments are
frowned upon.
+ "he issuance of the order of default should be the e(ception rather than the rule'
allowed only in clear obstinate refusal by the defendant to comply with the orders
of the trial court.
E.ect of Order of Defaut
A party in default loses his standin in court
+ 3e cannot appear in court' adduce evidence' e(amine the witnesses nor object to
plainti$4s evidence.
,ein declared in default does not constitute a waiver of all rihts. 5hat is lost is only
the riht to be heard and to present evidence durin trial.
+ A party in default
1. %s entitled to notice of *nal judments' orders and proceedins subse&uent
thereto#
/. 6ay be cited and called to testify as a witness.
Remedies a,aia!e to a part" decared in defaut%
1. 7ile a motion under oath to set aside order of default
(i) 7iled by a defendant in default at any time after discovery of the declaration and
before judment#
(ii) 7iled on rounds that failure to answer was due to fraud' accident' mistake or
e(cusable nelience#
(iii) "hat the defendant has a meritorious defense.
+ 6otion to lift order of default must be under oath and accompanied by an a0davit
of merit.
/. 7ile a motion for new trial under Sec.1' 8ule 9:
+ 7iled when the judment had already been rendered when the defendant had
discovered the default' but before the same had become *nal and e(ecutor.
9. 7ile a petition for relief under Sec. 1' 8ule 9;
+ 7iled when the judment had already become *nal and e(ecutor when the
defendant discovered the default.
<. Appeal under Sec. /' 8ule <1
+ Appeal from the judment as bein contrary to law or evidence even if no petition
to set aside the order of default has been presented by him.
=. !etition for certiorari
+ 7iled to declare the nullity of the judment by default if the court improperly or
with rave abuse of discretion declared a party in default.
0udgment !" defaut is imited to suc# reiefs as t#e caimant1s peading ma"
+arrant2 uness t#e court in its discretion re3uires t#e caimant to su!mit
e,idence'
Actions +#ere defaut is 4OT ao+ed
1. Action for declaration of nullity of marriae' action for annulment of marriae' and
action for leal separation.
+ %f defendin party fails to answer' the court shall order the prosecutin attorney
to investiate whether or not there is collusion between the parties. %f there is no
collusion' the prosecutin attorney shall intervene for the State to see to it that
evidence submitted to the court is not fabricated.
/. ,efore the e(piration of the period to answer as when there is a pendin motion for
e(tension of time to plead.
9. %n actions overned by the 8ules on Summary !rocedure
( 5inds of proceedings after decaration of defaut and extent of reief granted
1. 5ithout hearin
+ 2ourt may immediately render judment rantin such relief as his pleadin may
warrant. Such relief however shall not e(ceed or be di$erent from that prayed for
nor award unli&uidated damaes.
/. 5ith hearin
+ 2ourt may in its discretion allow or re&uire the claimant to submit evidence. "he
court may render judment rantin the reliefs prayed as established by the
evidence. %t may also award unli&uidated damaes without e(ceedin the amount
prayed for.