5. Effect of Failure to Plead (Rule 9, Secs. 1 and 2)

Effect of Failure to File Cross-Claim

General Rule: A cross claim which is not set up in the action is barred. (Rule 9, Sec. 2)

The Following Defenses are Waived:

• Forgery in the signature;
• Unauthorized signature, as in the case of an agent signing for his principal;
• The corporation was not authorized under its charter to sign the instrument;
• Want of delivery; or
• At the time the document was signed, it was not in words and figures exactly as set out in the pleading.

Failure to specifically deny under oath the genuineness and due execution of an actionable document generally implies an admission of the same by the other party.

However, such IMPLIED ADMISSION IS DEEMED WAIVED if the party asserting the same has allowed the adverse party to present evidence contrary to the contents of such document without objection. (Central Surety v. Hodges, G.R. No. L-28633, 1971)

(1) EFFECT OF FAILURE TO MAKE A SPECIFIC DENIAL

General Rule: Allegations NOT specifically denied are deemed admitted.

Exceptions:

• Allegations as to the amount of unliquidated damages;
• Allegations immaterial as to the cause of action; and
• Conclusion of law.

FAILURE TO PLEAD DEFENSES AND OBJECTIONS (Implied Admissions)

General Rule: Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. (Rule 9, Sec. 1)

FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM OR CROSS-CLAIM

A compulsory counterclaim, or cross-claim, not set up at the time a defending party files his answer, shall be BARRED.

An AMENDED ANSWER is proper if the counterclaim or cross claim ALREADY EXISTED at the time the original answer was filed, but due to oversight, inadvertence, or excusable neglect, it was not set up.

A SUPPLEMENTAL ANSWER is proper if the counterclaim or cross-claim matures or is acquired AFTER the answer is filed.

EFFECT OF FAILURE TO PLEAD