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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 dismissal by the court):

1. Lack of jurisdiction over the subject matter

2. Litis pendencia

3. Action is barred by prior judgment

4. Prescription

Dismissal of the complaint does not carry with it the dismissal of the counterclaim

if

1. The counterclaim was pleaded by the defendant prior to service to him of the notice

of dismissal;

2. The dismissal was due to the fault of the plaintiff.

Compulsory Counterclaim

It refers to one which a defendant must interpose to prevent it from being barred in

a subsequent, separate action.

It is auxiliary or ancillary to the case. It does not require for its adjudication the

presence of third parties of whom the court cannot acquire jurisdiction.

Permissive vs Compulsory Counterclaim

Permissive CompulsoryDocket and other lawful fees should bepaid;

No docket fee is paid;

Accompanied by a certificate againstforum-shopping and certificate to fileaction from the Lupon;

Such certificates not required;

Not barred even if not set up in theanswer;

Barred if not raised in the answer;

Initiatory pleading; Auxilliary or ancillary to the main action;Needs to be answered otherwise party maybe declared in default.

If compulsory counterclaim reiteratesspecial defenses that are deemedcontroverted even without a reply, orraises issues which are deemedautomatically joined by the allegations ofthe complaint, need not be answered.

If it raises issues not covered by thecomplaint, should be answered.

If counterclaim is based on actionable document attached to or copied in the

counterclaim, the genuineness and due execution of the instrument shall be deemed

admitted UNLESS the adverse party specifically denies under oath its genuineness and

due execution.

Cross-claim

A cross-claim not set-up in the action is barred (Sec. 2).

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Effect of dismissal of complaint to cross-claim:

1.

If cross-claim is purely defensive, the cross-claim is also dismissed.

2. If cross-claim seeks affirmative relief, the cross-claim is NOT dismissed.

Grounds under which defending party may be declared in default

1. The defending party failed to answer within the time allowed therefore;

2. The defending party failed to furnish a copy of the answer to the claiming party.

Declaration of Default

A declaration of default cannot be made by the court motu proprio; there must be a

motion to that effect.

- If no motion to declare defendant in default is filed, the complaint should be

dismissed for failure to prosecute.

- A notice of the motion to declare the defending party in default should be served

upon the defending party.

Courts should not be too harsh in declaring a party in default especially when it has

actual notice of valid reasons that prevented said party from answering.

- Courts should be liberal in setting aside order of default for default judgments

are frowned upon.

- The issuance of the order of default should be the exception rather than the rule,

allowed only in clear obstinate refusal by the defendant to comply with the

orders of the trial court.

Effect of Order of Default

A party in default loses his standing in court

- He cannot appear in court, adduce evidence, examine the witnesses nor object to

plaintiffs evidence.

Being declared in default does not constitute a waiver of all rights. What is lost is

only the right to be heard and to present evidence during trial.

- A party in default

1. Is entitled to notice of final judgments, orders and proceedings subsequent

thereto;

2. May be cited and called to testify as a witness.

Remedies available to a party declared in default:

1.

File a motion under oath to set aside order of default

(i) Filed by a defendant in default at any time after discovery of the declaration and

before judgment;(ii)

Filed on grounds that failure to answer was due to fraud, accident, mistake or

excusable negligence;

(iii)

That the defendant has a meritorious defense.

- Motion to lift order of default must be under oath and accompanied by an

affidavit of merit.

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2. File a motion for new trial under Sec.1, Rule 37

-

Filed when the judgment had already been rendered when the defendant had

discovered the default, but before the same had become final and executor.

3. File a petition for relief under Sec. 1, Rule 38

- Filed when the judgment had already become final and executor when the

defendant discovered the default.

4. Appeal under Sec. 2, Rule 41

- Appeal from the judgment as being contrary to law or evidence even if no

petition to set aside the order of default has been presented by him.

5. Petition for certiorari

- Filed to declare the nullity of the judgment by default if the court improperly or

with grave abuse of discretion declared a party in default.

Judgment by default is limited to such reliefs as the claimants pleading may

warrant, unless the court in its discretion requires the claimant to submit evidence.

Actions where default is NOT allowed

1. Action for declaration of nullity of marriage, action for annulment of marriage, and

action for legal separation.

- If defending party fails to answer, the court shall order the prosecuting attorney

to investigate whether or not there is collusion between the parties. If there is no

collusion, the prosecuting attorney shall intervene for the State to see to it that

evidence submitted to the court is not fabricated.

2. Before the expiration of the period to answer as when there is a pending motion for

extension of time to plead.

3.

In actions governed by the Rules on Summary Procedure

2 Kinds of proceedings after declaration of default and extent of relief granted

1. Without hearing

- Court may immediately render judgment granting such relief as his pleading

may warrant. Such relief however shall not exceed or be different from that

prayed for nor award unliquidated damages.

2. With hearing

- Court may in its discretion allow or require the claimant to submit evidence. The

court may render judgment granting the reliefs prayed as established by the

evidence. It may also award unliquidated damages without exceeding the amountprayed for.