Section 1.

Defenses and objections not

pleaded. Defenses and objections not pleaded
either in a motion to dismiss or in the answer
are deemed waived. However, when it appears from
the pleadings or the evidence on record that the
court has no jurisdiction over the subject
matter, that there is another action pending
between the same parties for the same cause, or
that the action is barred by a prior judgment or
by statute of limitations, the court shall
dismiss the claim. (2a)

GENERAL RULE: Defenses or objections not pleaded in a motion to dismiss

or on answer are deemed waived. The court will acquire no jurisdiction over
the issues.

The policy is for the parties to lay all their cards on the table.

So, there is no such thing as a surprise defense because the defense must be
pleaded.

EXCEPTIONS:

Q: What defenses or objections can be taken cognizance of by the court

despite the fact that they are not raised in the motion to dismiss or answer?
A: Under Section 1, Rule 9, the following:

1.) That the court has no jurisdiction over the subject matter;
2.) That there is another action pending between the same parties for
the same cause (litis pendentia);
3.) That the action is barred by prior judgment (res adjudicata); and
4.) That the action is barred by statute of limitation (prescription).

Take note that the exceptions can be raised at any time during or after the
trial, or even for the first time on appeal. In other words, the court shall
dismiss the claim if any of the foregoing grounds appears from the
pleadings or the evidence on record.
 PNB vs. PEREZ (16 SCRA 279)
PEPSI COLA vs. GUANZON (172 SCRA 571)

HELD: “The rule on waiver of defenses by failure to plead in the

answer or in a motion to dismiss does not apply when the plaintiff’s
own allegations in the complaint show clearly that the action has
prescribed in such a case the court may motu propio dismiss the
case on the ground of prescription.”

Under the 1964 Rules, one of the grounds that you can raise at any stage of
the proceeding before judgment is failure to state a cause of action, but it
disappeared under the new rules. Does it mean to say that you cannot raise
it anymore?

NO. It can still be raised because it can be taken care of by another rule –
Rule 33 on Demurrer.(This is doubtful because in a demurrer to evidence the
ground is insufficiency of evidence or lack of cause of action not failure to
state a cause of action).

Sec. 2. Compulsory counterclaim, or cross-

claim, not set up barred. A compulsory
counterclaim, or a cross-claim, not set up shall
be barred. (4a)

See discussions on Rule 6, Sections 7 and 8 on counterclaim and cross-

claims, respectively.

RULE ON DEFAULT

Sec. 3. Default; declaration of. If the

defending party fails to answer within the time
allowed therefor, the court shall, upon motion
of the claiming party with notice to the
defending party, and proof of such failure,
declare the defending party in default.
Thereupon, the court shall proceed to render
 judgment granting the claimant such relief as
his pleading may warrant, unless the court in
its discretion requires the claimant to submit
evidence. Such reception of evidence may be
delegated to the clerk of court. (1a, R18)
x x x x x x

Default is a procedure, which results from the failure of the defendant to file
an answer to the complaint within the period prescribed by the rules.

Thus, defending party is declared in DEFAULT if he fails to answer the

complaint within the time allowed therefor.

In Vlason Enterprise Corp. v. CA, GR Nos. 121662-64, July 6, 1999, the Court
sais that a declaration of default is issued as a punishment for unnecessary
delay in joining the issues.

Ground for default-

It is the failure of the defendant to answer within the proper period, not
his failure to appear nor failure to present evidence, which, is the basis of a
declaration of default.

Effect of failure of defendant to attend the presentation of evidence for the

plaintiff-
The failure of the defendant to attend the hearings for the presentation of the
evidence of the adverse party amounts not to a default, but to a waiver of
the defendant’s right to object to the evidence presented during the
hearing and to cross-examine the witnesses presented. However, it would
not amount to a waiver of the defendant’s right to present evidence during
the trial dates scheduled for the reception of evidence for the defense. It is
error for the court to issue an order not denominated as an order of default
but provides for the application of the effects of default as when the
defendant who has filed an answer is not allowed to present evidence
because of her absence during the presentation of evidence by the plaintiff
(Monzon Spouses Relova vs. Addio Properties, Inc. GR 1712827, September
17, 2008)

Effect of failure of defendant to appear during the pre-trial-

It is not a ground to declare the default in default although the court can
order the plaintiff to present evidence ex-parte and to render judgment on
the basis thereof. This is because, while the consequence may be similar, such
effect is not a form of punishment imposed upon a defendant for his/her
failure to join the issues. Thus, the old rule which authorized the court to
declare a defendant who fails to appear during the pre-trial as “as in default”
is no longer found in the present rules.

Requisites before a party may be declared in default:

1. The Court must have acquired jurisdiction over the person of the
defendant thru a valid service of summons or voluntary appearance;
2. The defending party must have failed to file his answer within the
reglementary period or within the period fixed by the court;
3. there must be a motion to declare the defendant in default;
4. The defending party must be notified of the motion to declare him in
default (Sec. 3 R 9)
5. There must be a hearing of the motion to declare the defendant in
default; and
6. There must be proof of such failure to answer.

The required hearing is mandated by Sec. 4 of Rule 15, which states:

“Sec. 4. Hearing of motion – Except for motions which the court may act
upon without prejudicing the rights of the adverse party, every written
motion shall be set for hearing by the applicant.”

Take note that the word ‘defending’ party applies not only to the original
defendant but even to the cross-defendant or defendant in a counterclaim.

Steps when the defendant fails to file an answer within the time allowed:
 1.) Plaintiff must file Motion to declare defendant in default;
2.) Declaration or Order of default; and
3.) Rendition of Judgment by Default or judgment based on the
complaint of the plaintiff UNLESS the court requires the
claimant to submit evidence (ex-parte presentation of plaintiff’s
evidence)

The court cannot motu proprio declare a defendant in default.

The court also has the discretion to extend the time for filing an Answer
or admit an Answer though filed out of time-

The trial court has the discretion not only to extend the time for filing an
answer but also to allow an answer to be filed after the reglementary period.

Where there is no declaration of default yet, answer should be admitted even

if filed out of time and no prejudice is caused to the plaintiff. Where answer
has been filed, there can be no declaration of default anymore. (Guillerma S.
Sablas vs. Esterlita S. Sablas and Rodulfo Sablas, GR No. 144568, July 3, 2007)

When a defendant who filed an answer on time can still be declared in

default-

Q: If a defendant files an answer but did not furnish a copy of the answer to
the plaintiff, can the plaintiff move to declare the defendant in default?
A: YES, because the answer is deemed to have not been legally filed. It
was not in accordance with the Rules of Court. (Gonzales vs. Francisco, 49
Phil. 47) So the defendant must furnish the plaintiff a copy of the answer
because in the case of

RAMIREZ vs. COURT OF APPEALS

187 SCRA 153

HELD: “The failure to furnish a copy of the answer to the

adverse party in itself is sufficient or valid basis for defendant’s
default.”
Action of the court after the declaration/order of default

It can do either of the following:

1. To proceed to render judgment, or
2. To require the plaintiff to present his evidence ex parte.

Under Section 3, it is discretionary upon the court to require the claimant to

submit evidence. EX-PARTE RECEPTION of evidence is OPTIONAL for the
court. And such reception of evidence may be delegated to the clerk of court.
This is related to Section 9, Rule 30:

Rule 30, Sec. 9. Judge to receive evidence;

delegation to clerk of court. The judge of the
court where the case is pending shall personally
receive the evidence to be adduced by the
parties. However, in default or ex parte
hearings, and in any case where the parties agree
in writing, the court may delegate the reception
of evidence to its clerk of court who is a member
of the bar. The clerk of court shall have no
power to rule on objections to any question or
to the admission of exhibits, which objections
shall be resolved by the court upon submission
of his report and the transcripts within ten
(10) days from termination of the hearing. (n)

The reception of evidence maybe delegated to the clerk of court but the
clerk of court must be a lawyer. That is the condition. So if he is not a member
of the bar, he is not authorized to conduct or hear an ex-parte reception of
evidence.

Default judgment disfavored-

In Paramount Insurance Corp., v. A.C. Ordonez Corp., 561 SCRA 327, 334)
the Court held that the hornbook rule is that default judgments are generally
disfavored.
Effect of pendency of a Motion to Dismiss or for Bill of Particulars on
period to file an Answer-

Q: May a defendant be declared in default while a motion to dismiss

(Rule 16) or a motion for bill of particulars (Rule 12) remains pending and
undisposed of?
A: NO, because under the filing of a motion to dismiss or motion for bill
of particulars interrupts the running of the period to answer. It will run again
from the moment he receives the order denying his motion to dismiss or for
bill of particulars. (Hernandez vs. Clapis, 87 Phil. 437)
But said motions must follow the requirements otherwise they will be
treated as mere scraps of paper and will not toll the running of the period to
answer.