Ferrer v Ericta
No issue of fact was
Facts:
There was a vehicular accident which resulted to the
plaintiff’s action for damages against the parents of the
minor tortfeasor. The suit was filed more than four years
after the incident. Defendants filed their answer, but the
defense of prescription was invoked only when the case
was revived. The court eventually upheld the defense.
Doctrine:
Issue: WON the defense of prescription had been waived
by the defendants’ failure to allege the same in their
answer .
While it is true that, as a rule, prescription can only be
considered if the same is invoked in the answer of the
defense, the rule cannot be invoked when the evidence
shows that the action has already been barred by the
statute of limitations.
Strong v Repide
Agency case. 
Chua Lamko v Dioso
GR: Failure to plead the defense of prescription
amounts to waiver
Exptn: Chua Lamko case.
It is true that if the defense of prescription is not raised
in the answer it is deemed waived under Rule 9, secs. 9,
10 of the Rules of Court. But the waiver applied to
defenses of prescription "that would raise issues of
fact not appearing upon the preceding pleading."
Rule:
Specifically plead if the issues of fact do not appear
upon a preceding pleading.
No need to plead if the issues of fact appear upon the
preceding pleading.
The plaintiffs were not required to specifically plead
prescription, because the pleading of Chua Lamko
disclosed that the judgment had been rendered in
March 7, 1939 and it was asserted only in March, 1950;
i.e., more than ten years before.
involved by their claim of prescription; these two dates
were not denied. Therefore their failure to plead it did
not constitute waiver.
Default
Effect of order of default = loss of standing in court.
One cannot appear therein, adduce evidence, and be
heard and for that reason he is not entitled to notice.
Cavili v Florendo
A party in default is not barred to appear as witness by
virtue of said default.
Facts:
Perfecta was declared in default by the lower court.
Despite this, perfecta appeared before the court AS A
WITNESS. Respondent sought to disqualify Perfect by
contending that by letting Perfecta act as witness, the
court in effect permits Perfecta, who has been declared
in default, to participate in the trial.
Issue: WoN perfecta can act as witness despite being
declared in default.
SC: Yes.
A party in default loses his right to present his defense,
control the proceedings, and examine or cross-examine
witnesses. He has no right to expect that his pleadings
would be acted upon by the court nor may he object to
or refute evidence or motions filed against him. There is
nothing in the rule, however, which contemplates a
disqualification to be a witness or a opponent in a case.
Default does not make him an incompetent.
As opposed to a party litigant, a witness is merely a
beholder, a spectator or onlooker, called upon to testify
to what he has seen, heard, or observed. As such, he
takes no active part in the contest of rights between the
parties
Pascua vs Florendo
Doctrine: The provisions are not to be understood as
meaning that default or the failure of the defendant to
answer should be 'interpreted as an admission by the
said defendant that the plaintiff's cause of action find
support in the law or that plaintiff is entitled to the relief
prayed for.'
Facts:
Petitioner filed a complaint against respondent.
Respondent filed a MTD contending that the action had
already prescribed. RTC denied said motion and
declared the respondent in default for failure to file
answer within the reglementary period.
The Court finds that there was really fraud committed by
Martin Pascua in selling the entire property which said
Martin Pascua and plaintiffs inherited from their parents
thus excluding the shares of the plaintiffs. RTC then
dismissed the complaint.
WoN RTC erred in not ruling in favor of petitioner in view
of the default of respondent.
SC: NO.
A defaulted defendant is not actually thrown out of
court. While in a sense it may be said that by defaulting
he leaves himself at the mercy of the court, the rules see
to it that any judgment against him must be in
accordance with law. The evidence to support the
plaintiff's cause is, of course, presented in his absence,
but the court is not supposed to admit that which is
basically incompetent.
Phil British vs Delos Angelos
Doctrine:
Parties and counsel should not assume that courts are
bound to grant the time they ask for compliance with
the rules.
The defense of counsel that he received only the order
of extension by mail on a day when compliance to the
same is already near IS NOT A REASON FOR HIM TO
COMPLAIN. Refer to the doctrine. He is not entitled to
it anyway.
Likewise, the defense that the counsel was not notified
of the motion to declare his client in default IS ALSO
NOT A REASON FOR HIM TO COMPLAIN. Why? He had
no right to such notice. (You should know the period
within which to file your submissions)
Malangyaon vs Sunga
Malangyaon was declared in default by the trial court.
An order of arrest was issed by the judge. Malanyaon
filed an Omnibus Motion to lift his Order of Arrest, to set
aside order of default and to reset hearing on account of
his illness and subsequent surgical operations.
The judge lifted the order of arrest but denied the lifting
of the order declaring malangyaon in default.
SC: The lower court’s act of ordering Malanyaon’s arrest
is patently illegal. There is nothing in the Rules which
authorizes the trial court to order arrest of the party in
default. A party declared in default merely loses the right
to be notified of subsequent proceedings and the right
to take part in the trial until the order is lifted.
No basis to deny the lifting of the order of default when
the judge was convinced that Malangyaon’s failure to
appear was due to his illness for which judge lifted the
order of arrest.
When can an order of default be set aside.
At any time after discovery thereof + BEFORE
JUDGMENT
On what grounds?
due to fraud, accident, mistake or excusable neglect
and that he has a meritorious defense
Filinvest vs CA
The lower court granted the five (5) motions and denied
the sixth motion before it declared Philfinance in
default. All in all, the lower court gave the private
respondent eighty-eight (88) days to answer the
complaint, so it can not be stated that the trial court has
in any way unduly favored the petitioner neither can it
be considered that private respondent has been denied
due process. The reason for such extension according to
counsel was the inability to read the records because of
too much work, or heavy pressure of work, illness of
counsel or a rather frivolous reason such as the
unexpected wedding of one of the counsel.
In motions for reconsideration of an order of default, the
moving party has the burden of showing such diligence
as would justify his being excused from not filing the
answer within the reglementary period as provided by
the Rules of Court, otherwise, these guidelines for an
orderly and expeditious procedure would be rendered
meaningless. Unless it is shown clearly that a party has
justifiable reason for the delay the court will not
ordinarily exercise its discretion in his favor.
Liberal construction of procedural rules in this case was
not applied.
Sablas v Sablas
asking the court to declare the defending party in
default; (2) the defending party must be notified of the
motion to declare him in default and (3) the claiming
party must prove that the defending party has failed to
answer within the period provided by the Rules of
Court.
Rule:
Even after the lapse of reglementary period within which
to file an answer and it is filed before declaration of
default, the defendant’s answer should be admitted.

Facts:

An answer was filed with the RTC after the lapse of the
reglementary period but the court admitted it anyway.
Thereafter, respondent filed a motion to declare
petitioner in default. The court denied the same.

Doctrine: A court may not motu proprio declare a party

in default.

Where there is no declaration of default, answer may

be admitted even if filed out of time

Where answer has been filed, there can be no

declaration of default anymore

Elements of a valid order of default.

1. The court has validly acquired jurisdiction over

the person of the defending party either by
service of summons or voluntary appearance;

2. The defending party failed to file the answer

within the time allowed therefor and

3. A motion to declare the defending party in

default has been filed by the claiming party
with notice to the defending party.

Additionally, Three requirements must be complied

with before the court can declare the defending party
in default: (1) the claiming party must file a motion