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DEFENSES & OBJECTION

I. RULES ON DEFENSES AND OBJECTIONS
DEFENSES & OBJECTION NOT PLEADED WAIVED

DECLARATION OF DEFAULT (SEC. 3, RULE 9)

Sec 1, Rule 9 specifically provides that defenses and objections

not pleaded either in a motion to dismiss or in the answer are
deemed waived

If the defendant fails to answer within the time allowed

therefor, the court shall declare him in default subject to the
following requirements:
a. Upon motion of the claiming party;
b. With notice to the defending party; and
c. Proof of such failure, declare the defending party in
default

However, when it appears from the pleadings or the evidence

on record the court shall dismiss the case based on the ff:
a. The court has no jurisdiction over the subject matter;
b. That there is another action pending between the same
parties for the same cause; or
c. That the action is barred by a prior judgement; or
d. That the action is barred by statute of limitations
COMPULSORY COUNTERCLAIM OR CROSS-CLAIM NOT SET-UP
BARRED
Sec 2, Rule 9 provides that compulsory counterclaim or crossclaim not set-up shall be barred
II. BASIC CONCEPT IN ORDER & JUDGEMENT BY DEFAULT
ORDER OF DEFAULT
A default order is issued by the court, on plaintiffs motion and at
the start of the proceedings, for failure of the defendant to
file his responsive pleading seasonably.
JUDGEMENT BY DEFAULT
A judgement by default is a judgment rendered by the court
based on the presentation of the plaintiffs evidence ex parte
after the defendant has been declared in default, and the
award shall not exceed the amount or be different from the kind
of prayer that the plaintiff complained as the facts and evidence
so warrant

The court upon motion of the plaintiff to declare the defendant in

default shall:
a. Proceed to render judgment granting the claimant such
relief as his pleading may warrant;
b. Unless the court in its discretion requires the claimant to
submit evidence;
c. Such reception of evidence may be delegated to the clerk
of court
A party declared in default shall be:
a. Entitled to notice of subsequent pleadings;
b. He cannot take part in the trial
c. He can be a witness in the case;
d. He is entitled to receive judgement, order or
resolution and substantially amended pleading
Where defendants before a trial court are declared in default
they thereby lose their right to object to the reception of
the plaintiffs evidence establishing his cause of action.
This is akin to a failure to, despite due notice, attend in court
hearings for the presentation of the complainants evidence,
which absence would amount to the waiver of such defendants
right to object to the evidence presented during such
hearing, and to cross examine the witnesses presented
therein. (Magdiwang Realty Corporation vs. The Manila
Banking Company)

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A party declared in default may at any time after notice
thereof and before judgement may file:
a. A motion under oath to set aside the order of
default;
b. Upon proper showing that his failure to answer was due
to fraud, accident, mistake or excusable negligence
c. That he has a meritorious defense; and
d. In such case, the order of default may be set aside on
such terms and conditions as the judge may
impose in the interest of justice
In case of denial of the motion to lift order of default, the
defendant-movant may file a motion for reconsideration.
In case of denial of the motion for reconsideration, then
petition for certiorari under Rule 65 on the ground of grave
abuse of discretion amounting to lack or in excess of
jurisidiction since the order is interlocutory in character.
Effects of Partial Default: When a pleading asserting a claim
states a common cause of action against several defending
parties, some of whom answer and the others fail to do so, the
court shall:
a. Try the case against all upon the answers thus filed; and
b. Render judgement upon the evidence presented
A judgement rendered against a party in default shall:
a. Not exceed the amount; or
b. Be different in kind from that prayed for;
c. Nor award unliquidated damages
While as a general rule, certiorari may not be availed of where
an appeal is available and an appeal lies from a judgement by
default, nevertheless if there was grave abuse of discretion
on the part of the trial court, the special civil action of
certiorari may be availed of by the aggrieved party as this is an
exception to said general rule. Certiorari would provide a more
speedy and adequate remedy since the aggrieved party in a
default judgement had no opportunity to adduce evidence in the
courts, hence on appeal only the self-serving evidence presented
by the plaintiff in the ex parte reception thereof would be
considered (Continental Leaf Tobacco Phil Inc. vs CA)

Judgment by default are not looked upon with favor to prevent a

positive and considerable injustice to the defendant (Republic
vs. CA)
In the following instances there will be declaration of default
even there is no answer filed:
a. In an action for annulment of marriage; or
b. Declaration of nullity of marriage; or
c. Action for legal separation
In case the defending party fails to answer, the court shall:
a. Order the prosecuting attorney to investigate whether or
not a collusion between the parties exists; and
b. If there is no collusion, to intervene for the State in order
to see to it that the evidence submitted is not fabricated.
The rule is that a client is bound by the acts, even mistakes, of
his counsel in the realm of procedural technique[,]and unless
such acts involve gross negligence that the claiming party can
prove, the acts of a counsel bind the client as if it had been the
latters acts.
In LBC Express - Metro Manila, Inc. v. Mateo, the Court held
that [g]ross negligence is characterized by want of even slight
care, acting or omitting to act in a situation where there
is a duty to act, not inadvertently but willfully and
intentionally
with
a
conscious
indifference
to
consequences insofar as other persons may be affected.
This cannot be invoked in cases where the counsel is merely
negligent in submitting his required pleadings within the period
that the rules mandate.
Extrinsic fraud refers to any fraudulent act of the prevailing
party in the litigation which is committed outside of the trial of
the case, whereby the unsuccessful party has been prevented
from exhibiting fully his case, by fraud or deception practiced on
him by his opponent (Phil. Tourism Authority vs. Phil. Golf
Development & Equipment Inc.)
The raison dtre in limiting the extent of relief that may be
granted is that it cannot be presumed that the defendant would

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not file an Answer and allow himself to be declared in default
had he known that the plaintiff will be accorded a relief greater
than or different in kind from that sought in the Complaint. No
doubt, the reason behind Section 3(d), Rule 9 of the Rules
of Court is to safeguard defendants right to due process
against unforeseen and arbitrarily issued judgment. This,
to the mind of this Court, is akin to the very essence of
due process. It embodies "the sporting idea of fair play" and
forbids the grant of relief on matters where the defendant was
not given the opportunity to be heard thereon. (Diona vs.
Balangue)
Annulment of Judgement is not a remedy for default:
Annulment of Judgment under Rule 47 of the Rules of Court is a
recourse equitable in character and allowed only in exceptional
cases where the ordinary remedies of new trial, appeal, petition
for relief or other appropriate remedies are no longer available
through no fault of petitioner. (Phil. Tourism Authority vs.
Phil. Golf Development & Equipment Inc.)
INSTANCES WHERE ORDER OF DEFAULT MAY BE ISSUED
An order of default may be issued by the court in case of failure
of the defendant to file an answer in the ff. instances:
a. Original complaint;
b. Permissive counterclaim;
c. Cross-claim
d. Third/ Fourth party complaint;
e. Complaint- in- Intervention;
f. Interrogatories to parties; and
g. Complaint for Interpleader
DEFAULT IN COMPLAINT-IN-INTERVENTION
Sec 4, Rule 19 of the 1997 Rules
original parties to file an
intervention within 15 days
admitting the same unless a
court.

of Civil procedure requires the

answer to the complaint-infrom notice of the order
different period is fixed by the

DECLARATION OF DEFAULT IN INTERPLEADER

Each claimant who are parties in an action for interpleader
shall file:
a. His answer setting forth his claim within fifteen (15) days
from service of the summons upon him, serving a copy
thereof upon each of the other conflicting claimants
b. Claimants served with an answer may file their reply
thereto as provided by these Rules.
If any claimant fails to plead within the time herein fixed, the
court may, on motion:
a. Declare him in default; and
b. Render judgment barring him from any claim in respect
to the subject matter. (Sec 5, Rule 62)
FAILURE TO SERVE ANSWERS TO INTERROGATORIES UNDER
RULE 25
If a party or an officer or managing agent of a party willfully fails
to appear before the officer who is to take his deposition, after
being served with a proper notice, or fails to serve answers to
interrogatories submitted under Rule 25 after proper service of
such interrogatories, the court on motion and notice:
a. May strike out all or any part of any pleading of that
party; or
b. Dismiss the action or proceeding or any part thereof, or
c. Enter a judgment by default against that party; and
d. In its discretion, order him to pay reasonable expenses
incurred by the other, including attorneys fees. (Sec 5,
Rule 29)
Application to compel answer should be applied first before
judgement by default can be availed of for failure to file answer
to interrogatories
DEFAULT DISCRETIONARY WITH THE COURT
It is within the sound discretion of the trial court to permit the
defendant to file his answer and to be heard on the merits even

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after the reglementary period for filing the answer expires. The
Rules of Court provides for discretion on the part of the trial
court not only to extend the time for filing an answer but also to
allow an answer to be filed after the reglementary period.
(Sablas vs. Sablas)
NON-APPLICABILITY
PROCEEDINGS

OF

DEFAULT

ORDER

IN

SUMMARY

Under the Rules of Summary Procedure, no default order is

rendered or required as a motion to declare defendant in
default is prohibited.
Under the Rules on Small Claims and Rules of Procedure for
Environmental Cases, a motion to declare defendant in default is
a prohibited pleading

EFFECT OF FAILURE TO FILE AN ANSWER IN UNLAWFUL

DETAINER AND FORCIBLE ENTRY
Should the defendant fail to answer the complaint within the
period above provided, the court:
a. Motu Proprio or on motion of the plaintiff, shall render
judgment as may be warranted by the facts alleged in
the complaint and limited to what is prayed for therein;
b. The court may in its discretion reduce the amount of
damages and attorneys fees claimed for being excessive
or otherwise unconscionable, without prejudice to the
applicability of section 3 (c), Rule 9 if there are two or
more defendants. (Sec 7, Rule 70)