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The Rule on Defaults

ANNOTATION
THE RULE ON DEFAULTS
By
Atty. FLORIMOND C. ROUS
1. Introduction, p. 870.
2. Consequences of a Default Order, p. 873.
3. Remedy of Defaulted Party, p. 875.
4. Extent of Relief Allowed, p. 878.
5. When Defaults are not Allowed, p. 879.

1. Introduction
Judgment by default.If the defendant fails to answer
within the time specified in these rules, the court shall,
upon motion of the plaintiff and proof of such failure,
declare the defendant in default Thereupon the court shall
proceed to receive the plaintiffs evidence and render
judgment granting him such relief as the complaint and the
facts proven may warrant. This provision applies where no
answer is made to a counterclaim, crossclaim, or third
party complaint within the period specified in these rules.
(Rule 18, Section 1, Revised Rules of Court.).
Under the old rules, a judgment by default was referred
to as the judgment rendered against the defendant for his
failure to answer. (Veluz vs. Justice of the Peace of Sariaya,
42 Phil. 557). Said definition was not clear enough to give
the true distinction between an order of default and a
judgment by default. The latter term is broader since it
includes a judgment based on the evidence presented by

the plaintiff after an

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order of default has been entered against the defendant for

failure to answer within the time specified in the rules.
The distinction between judgment by default and
nonsuit was given in a certain case. When the plaintiff
makes default, he may be nonsuited when the defendant
makes default, a judgment by default may be rendered
against him. A judgment of nonsuit is a judgment by which
the action of the plaintiff is dismissed when he is unable to
prove his case or when he refuses or neglects to proceed to
the trial of the case after it has been put in issue, without
determining such issue. (Veluz vs. Justice of the Peace of
Sariaya, supra.).
Under this Section, a defendant may be declared in
default if he fails to answer within the time specified in
these rules. (Rule 18, Section 1, Revised Rules of Court
Evangelista vs. Soriano, 48 O.G. No. 10, 4312). Under no
circumstance, may a defendant who has filed his answer be
declared in default. (Rosario et al. vs. Alonzo et al., 8 SCRA
397). Thus, it is the filing of an answer on time, not a
motion to dismiss, which prevents the defendant from
becoming in default. (Narvaes vs. Vitug, CAGR L34003R,
May 21, 1965 Rosario vs. Alonzo, supra.
An order of default cannot properly be taken until the
time for pleading has expired and the defendant has failed
to plead within that time. (49 C.J.S., Sec. 199 a[3], p. 346).
The declaration of default or the rendering of judgment
before the expiration of the time for the filing of an answer
deprives the defendant of his day in court and the
judgment so rendered may be vacated. (Viacrucis et al. vs.
Estenzo, 5 SCRA 560).
The failure of the defendants to attend the hearing and
to adduce evidence therein after having filed their answer
to the complaint within the reglementary period does not
constitute default. (Go Changjo vs. Roldan SyChanjo, 18
Phil. 405 and others). However, a party may be declared in
default for failure to attend the pretrial of the case. (Co
Ban Ling & Sons Co, vs. International Harvester Macleod,
Inc., 25 SCRA 612 Saulog vs. Custombuilt Manufacturing

Corporation, 26 SCRA 1 Dionisio vs. Sioson Puerto, 60

SCRA 471).
It has also been ruled that a plaintiff who failed to
answer a counterclaim may be declared in default
(Descutido vs.
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Baltazar, 1 SCRA 1174 Zambales Colleges, Inc. vs. Court

of Appeals, 1 SCRA 870) on the other hand, a defendant
may be declared in default for failure to file an answer to
the amended complaint. (Ong Pong vs. Custodio, 1 SCRA
780).
It was likewise decided that a defendant who files his
answer in court but fails to serve a copy thereof upon the
adverse party may validly be declared in default. (Gonzales
vs. Francisco, 49 Phil. 747). Likewise, a defendant who files
a motion to dismiss which is defective due to lack of notice
and proof ot service as required by Section 4, 5 and 6 of
Rule 26 (now Rule 15, and who is ordered by the court to
cure the defect in his motion, or to file an answer, but fails
to comply with said order, may properly be declared in
default. (San Pedro vs. Dionisio, 105 Phil. 1273).
Under the present rule, a defendant who fails to file his
answer on time can only be declared in default upon the
motion of the plaintiff. The court cannot motu propio
declare him in default. (Viacrucis et al. vs. Estenzo, supra
Soberano vs. Manila Railroad Company, 18 SCRA 732).
This present rule also requires that before a defendant is
declared in default, there must be proof that the defendant
failed to answer within the time specified by the rules.
(Rule 18, Section 1, Revised Rules of Court), Where the
defendant neither appears nor answers, the court should
before entering an order of default, require the plaintiff to
prove that summons has been duly served upon the
defendant. (Salmon and Pacific Commercial Company vs.
Tan Cueco, 36 Phil. 556).
It is generally irregular to enter judgment by default
while a motion to set aside the order of default remains
pending and undisposed of, but where said motion is filed
out of time, it is no error to enter a judgment by default.
(Mapua vs. Mendoza, 45 Phil. 429 Somoso vs. Sulit and

Reyes, 45 O.G. No. 3, p. 1335).

Where the plaintiff substantially amends his pleading
and the defendant has been properly served with the copy
of the amended pleading, an order of default may be taken
against said defendant if he fails to file his new or amended
pleading within the required time. (49 C.J.S., Sec. 199[b],
p. 347). A
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judgment rendered upon an amended complaint which was

not legally served upon the defendant is void as to any new
matter therein alleged. (Atkins, Kroll and Company vs.
Domingo, 44 Phil. 680). In this regard, it was likewise held
that judgment by default may be made against a party who
failed to serve answers to written interrogatories. (Cason
vs. San Pedro, 9 SCRA 925).
After an order of default against a defendant is entered
and before final judgment in favor of the plaintiff is
rendered, it is required that the plaintiff must establish by
competent evidence all the material allegations of his
complaint upon which he bases his prayer for relief. (Lopez
vs. Mendozona et al., 41. Phil. 209),
Generally, judgments by default are frowned upon.
Since the policy of the law is to have every litigated case
tried on its merits, judgments by default are now favored,
as such judgments deprive defendants of their substantial
rights. (49 C.J.S., Sec. 187, p. 326 Caballes vs. Director of
Lands, 4 Phil. 363.). The latest ruling on this point is this
case subject to annotation, in which the Court
emphatically expressed its views regarding this matter.
The Court has time and again as in the recent case of
Mercader vs. Bonto enjoined trial judges to act with
circumspection, and not to misuse and abuse the rules of
procedure as instruments for the denial of substantial
justice and equity. It has ever cautioned them that this
Court frowns upon such application of procedural rules
with pedantic rigor and that default is not a mechanical
gadget for the acceleration of judicial litigations and
reminded them that they should not act precipitately in
declaring a party in default because judgements by default
are never looked upon with favor. (Gerian vs. Boncaros,

G.R. L48723, October 30, 1979.)

2. Consequences of Default Order
Effect of order of default.Except as provided in section 9
of Rule 13, a party declared in default shall not be entitled
to notice of subsequent proceedings, nor to take part in the
trial. (Rule 18, Section 2, Revised Rules of Court.) A party
in default loses his standing in court. (Cason vs. San Pedro,
supra.). Thus also, a party in default cannot file a cross
claim. (Tan vs. Dimayuga, 5 SCRA 712).
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An order of default does not pretend to be based upon the

merits of the controversy. Its existence is justified on the
ground that it is the one final expedient to induce the
defendant to join issue upon the allegations tendered by
the plaintiff, and to do so without unnecessary delay. An
order of default may amount to a positive and considerable
injustice to the defendant and the possibility of such
serious consequences necessitates a careful examination of
the grounds upon which the defendant asks that it be set
aside. (Cooms vs. Santos, 24 Phil. 450 Macaraig vs. Dy
Sun, 105 Phil. 332.)
A party declared in default is not entitled to notice of
proceedings nor to take part in the trial. (Rule 18, Section
2, Revised Rules of Court Auyong Hian vs. Court of Tax
Appeals, 59 SCRA 110.). The party at default admits
nothing and plaintiff must prove his cause. (C.N. Hodges
vs. Espayos, 52 SCRA 432).). An order of default, therefore,
does not imply a waiver of all rights except that of being
heard and of presenting evidence in his favor. It does not
imply admission by the defendant of the facts and causes of
action of the plaintiff because the rule (Sec. 1, Rule 18)
requires the latter to adduce his evidence in support of his
allegations as an indispensable condition before final
judgment could be given in his favor. Nor could it be
interpreted as an admission by the defendant that the
plaintiffs causes of action find support in the law or that
the latter is entitled to the relief prayed for. (Macondray

and Company vs. Eustaquio, 64 Phil. 446 Bautista vs.

Martin, 43 O.G. No. 5, p. 1072 De los Santos vs. De la
Cruz, 37 SCRA 555.).
The reason why the defaulting defendant is not entitled
to notice is that it would be useless or purposeless to do so
since the defendant cannot appear and be heard in the suit
any way. If the defendant in default has the right to appear
and be heard on appeal, there would be no reason why he
should not be given notice of the proceedings in order that
he may exercise said right as appellant or appellee. There
is absolutely no reason for denying a defaulted defendant
the right to be heard before, and granting him that right
after the judgment on the merits. If he is out of or has no
standing in court before judgment on the merits, he cannot
be considered as no longer in default after
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said judgment. And if he cannot appear and be heard in the

suit he cannot appeal as appellant nor appear and be heard
as appellee, because an appeal is a continuation of the
same case or suit commenced in the lower court. The
jurisdiction of the latter is, by appeal, transferred to the
appellate court. The rendition of the judgment by the trial
court and the appeal therefrom by the adverse party does
not confer upon any of them more right than he had before
the judgment in so far as their standing in court is
concerned. (Lim Toco vs. Go Tay, 80 Phil. 167.).
A defendant who has been declared in default loses his
standing in court as a party litigant. Before the order of
default is vacated said defendant has no right to expect
that his pleadings would be acted upon by the court. So a
defendant who filed a motion to dismiss after having been
declared in default cannot expect that his motion to dismiss
would be acted upon by the court, despite an amended
complaint thereafter filed by the plaintiff against him and
his codefendant. (Tan vs. Dimayuga, 5 SCRA 712.). But a
defendant who has timely filed an answer and is therefore
not in default is entitled to be served with notice of the
judgment rendered in the case although he or his attorney
was not present at the trial. (Ignacio vs. Racho and
Dolores, 78 Phil. 557.)

 3. Remedy of Defaulted Party

Relief from order of default.A party declared in default
may at any time after discovery thereof and before
judgment file a motion to set aside the order of default
upon proper showing that his failure to answer was due to
fraud, accident, mistake or excusable neglect and that he
has a meritorious defense. In such case the order of default
may be set aside on such terms and conditions as the
judgment may impose in the interest of justice. (Rule 18,
Section 3, Revised Rules of Court).
A party who has been declared in default by the
municipal or city court, in order to enable him to restore
his standing in court may avail himself of several remedies.
(Luzon Rubber and Manufacturing Company vs. Estaris,
52 SCRA 391.), The
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remedies available to party declared in default is to ask the

court within one day after the notice of the order of default
to set aside such order by appearing and showing to the
satisfaction of the court that his failure to appear was due
to fraud, accident, mistake or excusable negligence and file
a petition for relief in the Court of First Instance or motion
to lift the default judgment before its finality and
executory. (Luzon Surety Company vs. Magbanua, 72
SCRA 254.). Motion to set aside order of default must
contain that the failure was due to fraud, accident,
mistake, or excusable neglect and that the movant has a
meritorious defense. (Carandang vs. Cabatuando, 53 SCRA
382.). Failure to submit an affidavit of merits showing a
valid defense which they may prove in case a new trial is
granted is fatal to the cause of defendants who have been
declared in default. (Dionisio vs. Sioson Puerto, 60 SCRA
471.). Motion to set aside the order of default and the
judgment by default must be verified or accompanied by an
affidavit of merits. (Quirante vs. Verano, 37 SCRA 801.).
The procedure by which defaulting defendant may secure
stay of execution of judgment on merits is to file a verified

petition to set aside the order of default. (Asian Surety &

Insurance Co. Inc. vs. Relucio, 47 SCRA 225.).
A default order may be set aside when no order of
default has yet been issued by the court or that the
defendant has valid defenses which he may interpose to set
it aside or a proper showing why a party may be justifiably
excused for disregarding the reglementary period.
(Quirante vs. Verano, 37 SCRA 801.). Default may be lifted
where no valid service of summons had been effected.
(Republic vs. Perez, 8 SCRA 337.).
Motion for reconsideration without notice of hearing is
proper where the other party is in default. (Philippine
National Bank vs. Fernandez, 20 SCRA 645.). Where the
motion for reconsideration of the defendant shows that it
was a meritorious defense, a judgment by default may be
set aside. (Mata vs. Flores, 25 SCRA 876.).
A motion to set aside orders of default and judgments by
default is addressed to the sound discretion of the court (De
Castro vs. Cebu Portland Cement Company, 71 Phil. 479
Tumambing vs. Ganzon, 18 SCRA 411,). As a general rule,
the
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court will not set aside a judgment by default unless the

defendant shows that he has a good and meritorious
defense. (Provincial Government of Sorsogon vs.
Stamatelaky, 65 Phil. 206.). The fact that the motion to set
aside is immediately made after entry of the order and that
no real injury to the rights of the plaintiff would result
from an opening of the judgment are factors no less
important to be considered in setting aside a judgment by
default. (Coombs vs. Santos, 24 Phil. 446.).
A declaration of default entails a forfeiture of the right
to notice which implies the denial of the right to be heard,
which in turn, implies the loss of the right to appeal.
Conversely, the seasonable filing of the motion to set aside
the order of default, which by operation of the Rules of
Court revives the right to notice, restores everything that
goes with it, namely the right to be heard, and
consequently, the right to appeal. (Calingo, et al. vs. Tan, et
al., 101 Phil. 1242.). An order of dismissal is appealable,

but an order denying or granting motion to declare

defendants in default is not appealable. (Vencilao vs. Vano,
17 SCRA 932.). A party who failed to lift an order of default
cannot make an appeal. (Zambales Colleges, Inc. vs. Court
of Appeals, 1 SCRA 870.). Party in default must file a
motion to set aside default order in order that he can
appeal. (Mercado vs. Domingo, 18 SCRA 961.).
An order declaring a party in default (before judgment
on the merits) is not appealable, it being interlocutory and
preliminary to the hearing of the case on the merits. It
remains under the control of the court and may be modified
or rescinded by it on sufficient ground at any time before
final judgment. (Mandian vs. Liong, 55 O.G. No. 39, p.
8287.). It is therefore a prerequisite to the defendants right
to appeal from the order of default that he should file a
motion under Section 3, Rule 18, not under Section 2, Rule
38 asking that the order of default entered against him be
set aside. (Lim Toco vs. Go Fay, 80 Phil. 168 and others.).
Once such motion is filed, the defendant, even if his motion
is denied becomes entitled to notice of all further
proceedings including final judgment and may duly appeal
therefrom. (Calingo vs. Tan, supra.). Under the Revised
Rules of Court a party, who had been declared in
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default, may appeal from judgment, even if no petition for

relief from judgment had been filed, (Antonio vs. Jacinto,
14 SCRA 364.). But appellant should avail of this remedy of
appeal only if a judgment on the merits has been rendered
against him only then may he appeal from the order of
default, as well as from the final judgment based upon such
default order. (Mandian vs. Liong, supra.). A party who has
been declared in default may likewise appeal from the
judgment rendered against him as contrary to law. (Matute
vs. Court of Appeals, 26 SCRA 768.). The appeal should be
perfected within 30 days from the day he was notified of
the order denying the motion to lift the order of default.
(Samudio vs. The Municipality of Gainga, Camarines Sur,
53 O.G. No. 12, p. 3744.). Where the party in default failed
to move for the lifting of the order of default, he has
forclosed his right to appeal from the portions of the

judgment which considered him in default. (Zambales

Colleges Inc. vs. Court of Appeals, supra.).
4. Extent of Relief Allowed
Extent of relief to be awarded.A judgment entered against
a party in default shall not exceed the amount or be
different in kind from that prayed for. (Rule 18, Section 5,
Revised Rules of Court.). Under the rule, the judgement
that may be rendered against a defendant who has been
declared in default must not exceed the amount or be
different in kind from that prayed for. The court cannot
grant a relief other than that what is demanded in the
complaint and so the court cannot allow specific items to
exceed the amount demanded in the statement of the cause
of action simply because the total award is within the total
amount set out in the prayer for relief. (Javelona vs. Yuyo,
31 Phil. 388.). Where a party has been declared in default
the amount of damages that should be adjudged against
him cannot exceed the amount alleged in the complaint
even if the complainants are able to prove during the
reception of evidence before the court commissioner a
higher amount of damages. (Manio vs. Gaddi, 44 SCRA
198.). The reason underlying this rule is that it may be
presumed that where the relief demanded by the plaintiff
is greater or dif
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ferent in kind from that claimed in the complaint, the

defendant would not have allowed himself to be declared in
default and would have perhaps filed his answer on time
opposing the plaintiffs demand. (Lim Toco vs. Go Fay,
supra.).
If a judgment entered against a party in default exceeds
the amount or is different in kind from what is prayed for,
the defendant in default may have the judgment set aside,
not by appeal because he cannot appeal, but through
certiorari proceedings on the ground that the court
exceeded its jurisdiction in so doing. (Lim Toco vs. Go Fay,
supra.).

 5. When Defaults are not Allowed

No defaults in actions for annulment of marriage or for
legal separation.If the defendant in an action for
annulment of marriage or for legal separation fails to
answer, the court shall order the prosecuting attorney to
investigate whether or not a collusion between the parties
exists, and if there is no collusion, to intervene for the State
in order to see to it that the evidence submitted is not
fabricated. (Rule 18, Section 6, Revised Rules of Court.).
The policy of the law in calling for the intervention of the
state attorney in cases of uncontested proceedings for legal
separation and of annulment of marriage is to emphasize
that marriage is more than a mere contract that it is a
social institution in which the state is actually interested,
so that its continuation or interruption cannot be made to
depend upon the parties themselves. (Brown vs. Yambao,
54 O.G. 1827.).
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