6. Default (Rule 9, Sec. 3)

DEFAULT (Rule 9)

Procedural concept when the defending party fails to file his ANSWER within the reglementary period. It does not occur from the failure of the defendant to attend either the pre-trial or the trial. (Note: under the revised rules on civ pro, allegations to a complaint is deemed controverted and an answer is no longer necessary except if when the allegation contains an actionable document)

The defendant’s non-appearance in the hearing and the failure to adduce evidence does NOT constitute default when an answer has been filed within the reglementary period. Instead, it amounts to a waiver of the defendant’s right to object to the evidence presented during such hearings and to crossexamine the witness presented. (Monzon v. Sps Relova v. Addio Properties, G.R. No. 17182, 2008)

Requisites Before a Party May be declared in Default:

• Summons has been validly and previously SERVED upon him;
• Defendant FAILS TO ANSWER within the time allowed therefore;
• There must be PROOF of such failure to answer;
• There must be a MOTION TO DECLARE the defendant in default;
• NOTICE to the defendant by serving upon him a copy of such motion; and
• HEARING of the motion to declare the defendant in default. (Riano, Civil Procedure: A Restatement for the bar, 2nd ed, 2009)

Remedies of a Party Declared in Default

• Before judgment: motion under oath to set aside order of default when failure to answer is based on fraud, accident, mistake, excusable negligence and the defendant has a meritorious defense
• Before judgment becomes final and executor: motion for new trial
• When judgment is final and executor: petition for relief
• Appeal judgment rendered against him as contrary to evidence or law
• Petition for certiorari to declare nullity of judgment by default. (Gomez v. Montalban, G.R. No. 174414, 2008)

The court has NO authority to motu proprio declare the defendant in default. A MOTION to declare the defending party MUST BE FILED by the claiming party before a declaration of default is made by the court. (Rule 9, Sec. 3)

Filing a motion to dismiss or a motion for a bill of particulars will interrupt the running of the period to file an answer. Thus, if these two motions are filed, a defendant may NOT be declared in default pending the resolution of these two motions.

General Rule: A default order and consequently, a default judgment are triggered by the failure to file the required answer by the defending party.

Failure to File an Answer in Cases covered by the Rule on Summary Proceeding

The defendant who fails to file an answer seasonably is NOT supposed to be declared in default.

Instead, the court, motu proprio OR upon 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.

A Party in Default is entitled to Notice of

• Motion to declare him in default;
• Order declaring him in default;
• Subsequent proceedings; and
• Service of final orders and judgments.

A declaration of default is NOT an admission of the truth or the validity of the plaintiff’s claims. (Monarch Insurance v. CA, G.R. No. 92735, 2000) A declaration or order of default is issued as a punishment for unnecessary delay in joining the issues. (Vlason Enterprises v. CA, G.R. Nos. 121662-64, 1999)

Complainants are not automatically entitled to the relief prayed for, once the defendants are declared in default. Favorable relief can be granted only after the court has ascertained that the relief is warranted by the evidence offered and the facts proven by the presenting party. Quantum of proof of plaintiff remains the same even with defendant’s default. (Gajudo v. Traders Royal Bank, G.R. No. 151098, 2006)

Default should be treated as the exception rather than the rule because the policy of the law is to have every litigant’s case tried on the merits as much as possible.

After Notice of Order and Before Judgment

Under Rule 9, Section 3, the defendant must file a motion under oath to set aside the order of default and show that:

• The failure to answer was due to fraud, accident, mistake, or excusable negligence; and
• The defendant has a meritorious defense, supported by an affidavit of merit.

Partial Default

• The default asserting a claim states a common cause of action against several defending parties;
• Some of the defending parties answer and the others fail to do so; and
• The answer interposes a common defense.

Effect of Partial Default

When a pleading asserts a claim against several defending parties and some file and serve their answers but the others do not, the court shall try the case against ALL the defending parties based on the answers filed and render judgment upon the evidence presented where the claim states a common cause of action against them. (Rule 9, Sec. 3(c))

The rule on partial default does not apply where the defenses of the answering defendants were personal to them, such as forgery. (Luzon Surety Co v. Magbanua, G.R. No. L-41804, 1976)

A Judgment Rendered Against a Party Declared in Default Shall NOT

• Exceed the amount prayed for;
• Be different in kind from that prayed for;
• Award unliquidated damages.

ACTIONS WHERE DEFAULT IS NOT ALLOWED

• Annulment of marriage;
• Declaration of nullity of marriage;
• Legal Separation;
• Special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed; and
• Summary procedure.