Nature of a pleading; how determined
Nature of a cause of action – determined by the allegations of the complaint
or petition and the character of the relief sought
Such allegations and relief also determine the body or court which has
jurisdiction over the action.
B. Parts of a Pleading
Caption of the pleading
(a)
(b)
(c)
Name of the court
Title of the action
Docket number, if assigned
Title of the action
-contains the names of the parties whose participation in the case shall be
indicated
-indicated as either plaintiff or defendant
-but in subsequent pleadings, it shall be sufficient if the name of the first
party on each side be stated with an appropriate indication whether there
are other parties
Body of the pleading
1. Sets forth its designation, the allegations of the party’s claims or
defenses, the relief prayed for, and the date of the pleading
2. Allegations in the body of the pleading shall be divided into paragraphs
-shall be numbered for ready identification
-each paragraph shall contain a statement of a single set of
circumstances so far as that can be done with convenience.
Headings; designation of causes of actions joined in one complaint
Allegations of ultimate facts
1. Not supposed to allege conclusion (every pleading, including
complaint) but must only aver facts
2. Need only contain the allegations of “ultimate facts” (the facts
essential to a party’s cause of action or defense
3. Every pleading shall omit from its allegations statements of mere
evidentiary facts. (Evidentiary matters are to be presented during the
trial of the case, not in the pleadings of the parties.)
Exception: The complaint in an environmental case appears to have a
different rule.
Relief
1. The complaint must contain a statement of the relief sought from the
court and to which he believes he is entitled, referred to as the
“prayer”.
2. It is a settled rule that a court cannot grant a relief not prayed for in
the pleadings or in excess of that being sought.
3. However, although the rule mandates that the relief prayed for be
specified, the same rule allows a pleader to include a “general prayer
for such further or other relief as may be deemed just or equitable.”
- A court can grant the relief warranted by the allegations and the
proof even if it is not specifically sought by the injured party; the
inclusion of a general prayer may justify the grant of a remedy
different from or together with the specific remedy sought, if the
facts alleged in the complaint and the evidence introduced so
warrant.
Signature and address
1. Every pleading must be signed by the plaintiff or counsel representing
him stating in either case his address (which should not be a post
office box.)
2. In the absence of a proper notice to the court of a change of address,
service upon the parties must be made at the last address of their
counsel of record.
3. A signed pleading is one that is signed either by the party himself or
his counsel.
Effect of an unsigned pleading
1. The signature in a pleading is important for it to have a legal effect.
(Under the Rules of Court [Sec. 3, Rule 7], “an unsigned pleading
produces no legal effect.”)
2. The court, however, is authorized to allow the pleader to correct the
deficiency if he shows to the satisfaction of the court, that the failure
to sign the pleading was due to mere inadvertence and not intended
for delay.
Significance of the signature of counsel
1. The signature of a counsel in a pleading is significant.
His signature constitutes a certificate by him thata. he has read the pleading
b. that to the best of his knowledge, information and belief, there is
good ground to support it, and
c. that it is not interposed for delay.
-failure to comply with this requirement reduces a pleading to a
mere scrap of paper totally bereft of legal effect.
-Through the counsel’s signature, a lawyer asserts his
competence, credibility, and ethics.
2. The counsel’s authority and duty to sign a pleading are personal to
him. “The preparation and signing of a pleading constitute legal work
involving practice of law which is reserved exclusively for the members of
the legal profession.”
When counsel is subject to disciplinary action in connection with
pleadings
(a)
(b)
(c)
(d)
when he
when he
when he
when he
address
deliberately files an unsigned pleading
signs a pleading in violation of the Rules
alleges in the pleading scandalous or indecent matter
fails to promptly report to the court a change of his
Verification in a pleading
1. Pleadings need not be under oath, verified or accompanied by
affidavit, except when so required by law or rule.
Statement of claim in small claims
cases
All pleadings in forcible entry and
unlawful detainer actions
Petitions for certiorari, prohibition,
and mandamus
Petition for quo warranto
requires a verification
All pleadings need to be verified
Require a verification
Require verification
How a pleading is verified
1. A pleading is verified by an affidavit. This affidavit declares that:
(a) the affiant has read the pleading, and
(b) the allegations therein are true and correct of his personal
knowledge or based on authentic records.
2. The verification requirement is “deemed substantially complied with-a. when one who has an ample knowledge to swear to the truth of the
allegations in the complaint or petition signs the verification, and
b. when matters alleged in the petition have been made in good faith or
are true and correct.
Significance of a verification
1. to secure an assurance that the allegations in a pleading are true and
correct and not the product of the imagination or a matter of
speculation
2. that the pleading is filed in good faith
Effect of lack of a verification
1. A pleading required to be verified but lacks the proper verification
shall be treated as an unsigned pleading.
-The lack of a proper verification is cause to treat the pleading as
unsigned and dismissible.
-instead of a pleading required to be verified but which contains a
verification based on “information and belief” or upon “knowledge,
information and belief,” shall be treated as an unsigned pleading.
2. Absence of a verification, or the non-compliance with the
verification requirement, does not necessarily render the pleading defective
(only a formal and not jurisdictional requirement which only affects the form
if the pleading.)
3. A defect in the verification does not necessarily render the pleading
fatally defective. The court may order its submission of correction, or act on
the pleading if the attending circumstances are such that strict compliance
with the Rule may be dispensed with in order that the ends of justice may be
served.
Other requirements
1. All pleadings, motions, and papers filed in court by counsel shall
bear—
 current Professional Tax Receipt Number (PTR)
 current IBP Official Receipt Number
- Pleadings, motions, and papers which do not comply with this
requirement may not be acted upon by the court, without prejudice
to whatever disciplinary action the court may take against the
erring counsel.
2. Bar Matter No. 1132, April 1, 2003.
 Roll of Attorneys Number (in all papers and pleadings filed in
judicial and quasi-judicial bodies; to protect the public by making it
easier to detect impostors who represent themselves as members
of the bar; to protect the integrity of legal practice)
3. All practicing members of the bar are also required to indicate in all
pleadings filed before the courts or quasi-judicial bodies—
 the number and date of issue of their Mandatory Continuing
Legal Education (MCLE) Certificate of Compliance or
Certificate of Exemption
- failure to disclose the required information would cause the
dismissal of the case and the expunction of the pleadings from the
records.
Certification against forum shopping
1. Certification against forum shopping (a sworn statement in which the
plaintiff or principal party certifies in a complaint or initiatory pleading
to the ff matters:)
(a) that he has not commenced any action or filed any claim
involving the same issue in any court, tribunal, or quasi-judicial
agency and, to the best of his knowledge, no such other action
or claim is pending therein;
(b)
(c)
that is there is such other pending action or claim, a complete
statement of the present status thereof; and
that if he should thereafter learn that the same or similar action
or claim has been filed or is pending, he shall report that fact
within five days therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed.
Meaning of forum shopping: rationale against forum shopping
1. Forum shopping – the act by a party of repetitively availing of
several judicial remedies in different courts, simultaneously or
successively, all substantially founded on the same transactions and
the same essential facts or circumstances, and all raising substantially
the same issues either pending or already resolved adversely by some
other court.
2. There is forum shopping where there exist:
a. Identity of parties, or at least such parties as represent the same
interests in both actions
b. Identity of rights asserted and relief prayed for, the relief being
founded on the same facts
c. The identity of the two preceding particulars is such that any
judgment rendered in the pending case, regardless of which
party is successful, would amount to res judicata in the other
case
- Res judicata – refers to the rule that a final judgment or decree on
the merits by a court of competent jurisdiction is conclusive of the
rights of the parties or their privies in all later suits on all points and
matters determined in the former suit. (G.R. No. 146980)
- General Register – an initiatory pleading properly filed shall be
assigned a docket or G.R. number, which shall identify the case for
record purposes until its termination under the Rules of Court.
3. The rationale against forum shopping – a party should not be allowed
to pursue simultaneous remedies in two different fora.
- Filing multiple petitions or complaints constitutes abuse of court
processes, which tends to degrade the administration of justice,
wreaks havoc upon orderly judicial procedure, and adds to the
congestion of the heavily burdened dockets of the courts.
-
Aims to prevent the embarrassing situation of two or more courts
or agencies rendering conflicting resolutions or decisions upon the
same issue.
The certification is not a jurisdictional requirement
-
-
Certification is mandatory under Sec. 5 of Rule 7 but not
jurisdictional since jurisdiction over the subject of the action is
conferred by law
Absence of the certification would not affect the jurisdiction of the
court over the action
(how to create/construct a certification against forum shopping)
Three ways of committing forum shopping
(1)
(2)
(3)
Filing multiple cases based on the same cause of action and with
the same prayer, the previous case not having been resolved yet
(where the ground for dismissal is litis pendentia);
Filing multiple cases based on the same cause of action and the
same prayer, the previous case having been finally resolved (where
the ground for dismissal is res judicata); and
Filing multiple cases based on the same cause of action, but with
different prayers (splitting of causes of action, where the ground for
dismissal is also either litis pendentia or res judicata)
(Commissioner of Customs v. Pilipinas Shell Petroleum Corp., GR 205002,
Apr 20, 2016)
Litis pendentia – a ground for dismissal of a civil action refers to that
situation wherein another action is pending between the same parties for the
same cause of action, such that the second action becomes unnecessary and
vexatious.
Determination of the existence of forum shopping
1. Question is : Whether the elements of litis pendentia are present or
whether a final judgment in one case will result to res judicata in
another
2. The test is to see whether in the two or more cases pending, there is:
(a) identity of parties
(b) identity of rights or causes of action
(c)
identity of reliefs sought
Who executes the certification against forum shopping
1. plaintiff or principal party – who executes the certification under oath;
must be executed by the party-pleader, not by his counsel.
- If, however, for justifiable reasons, the party-pleader is unable to
sign, he must execute a special power of attorney designating his
counsel of record to sign in his behalf
- A certification signed by counsel is a defective certification and a
valid cause for dismissal
Signing the certification when the plaintiff is a juridical entity
1. The certification against forum shopping, where the plaintiff or a
principal party is a juridical entity like a corporation, may be executed
by properly authorized persons.
2. With respect to a corporation, the certification must be executed by an
officer or member of the board of directors or by one who is duly
authorized by a resolution of the board of directors; otherwise, the
complaint will have to be dismissed.
i.
In Cagayan Valley Drug Corporation v. Commission on Internal
Revenue, the Court ruled that the ff officials or employees of a
company can sign the verification and certification against forum
shopping without need of a board resolution:
 Chairperson of the Board of Directors
 President of the corporation
 General Manager or Acting General Manager
 Personnel Officer
 Employment Specialist in a labor case
- Allowing the above persons is because of their being “in a position
to verify the truthfulness and correctness of the allegations in the
petition.”
Rule if there are several plaintiffs or petitioners
1. Certification against forum shopping must be signed by all the
plaintiffs or petitioners in a case; otherwise, those who did not sign will
be dropped as parties to the case.
2. Under reasonable or justifiable circumstances, as when the plaintiffs or
petitioners share a common interest and invoke a common cause of
action or defense, the signature of only one of them substantially
complies with the Rule.
3. The rule will not be applied if dishonesty attended the signing of the
certification against forum shopping.
Pleadings requiring a certification against forum shopping
1. Certification applies to complaint and other initiatory pleadings
asserting a claim for relief; initiatory pleadings include not only the
original complaint but also a permissive counterclaim, cross-claim,
third (fourth, etc.)-party complaint, complaint-in-intervention, petition
or any application in which a party asserts his claim for relief
- Required certification is intended to cover an initiatory pleading,
meaning an incipient application of a party asserting a claim for
relief
2. Comment- not an initiatory pleading;
- an expression of the views and observations of a respondent for the
purpose of giving the court sufficient information as to whether the
petition is legally proper as a remedy to the acts complained of;
- does not require certification against forum shopping
3. Compulsory counterclaim – does not require certification; because it
cannot be the subject of a separate and independent adjudication

Ex parte petition - In emergency situations, an ex parte motion provides an
exception to the rules of due process by allowing you to petition the court
without having to notify or serve the other parties involved in your case. If the
judge grants the ex parte order, the order is only temporary.

Special civil action – the rule requiring certification against forum
shopping applies to a special civil action since it is governed by the
rules for ordinary civil actions, subject to the specific rules
prescribed for a special civil action; Rule 46, Sec. 3 requires that
every petition for certiorari be accompanied by a sworn certification
of non-forum shopping.
Effects of non-compliance with the rule on certification against
forum shopping
1. Violation of the rule does not authorize the court to dismiss the case
on its own motion or initiative; the rule requires that the dismissal be
upon motion and after hearing.
(For example, if the defendant or the other party did not notice that the
plaintiff did not submit certification against forum shopping, can the court
mention about it? Since the court cannot dismiss the case without motion.)
2. If case is dismissed for failure to comply with the certification
requirement, the dismissal is, as a rule, “without prejudice,” unless the
order of dismissal otherwise provides.
 If a complaint is dismissed for failure to comply with the required
certification against forum shopping, the plaintiff cannot appeal
from the order. This is because an order dismissing an action
without prejudice is, as a rule, not appealable; remedy is to avail of
the appropriate special civil action under Rule 65.
3. The failure to submit a certification against forum shopping is a ground
for dismissal, separate and distinct from forum shopping as a ground
for dismissal.
a. Failure to submit certification is ground for dismissal
b. The act of forum shopping is ground for dismissal
c. A complaint may be dismissed for forum shopping even if there
is a certification attached; a complaint may be dismissed for lack
of the required cert even if the party has not committed forum
shopping.
- The general rule is that non-compliance or a defect in the cert is not
curable by its subsequent submission or correction; however, there
were cases when the Court exercised leniency and relaxed the rules
because of the presence of special circumstances or compelling
reasons.
- If there are objections relating to noncompliance with the
verification and certification of non-forum shopping, the same
should be raised in the proceedings below, and not for the first time
on appeal.
Effect of willful and deliberate forum shopping; dismissal of all
pending claims
1. If acts clearly constitute willful and deliberate forum shopping, the
same shall be ground for summary dismissal.
-
No motion to dismiss and hearing are required.
The dismissal in this case is with prejudice and shall constitute
direct contempt, as well as cause for administrative sanctions.
2. If the forum shopping is not considered willful and deliberate, the
subsequent case shall be dismissed without prejudice on the ground of
either litis pendentia or res judicata.
Effect of submission of false certification
1. The pleading has been filed with required cert against forum shopping
but the allegations therein or the matters certified to therein are false.
Under the Rules, the submission of a false certification shall constitute
indirect contempt of court without prejudice to the corresponding
administrative and criminal sanctions.
Effect of non-compliance with the undertakings
1. Failure to comply with the undertakings in the certification against
forum shopping has the same effect as the submission of a false
certification;
- such failure shall constitute indirect contempt of court without
prejudice to the corresponding sanctions;
- the criminal sanction would apply to the submission of a false
certification.
Summary of guidelines respecting non-compliance with the
requirements of or submission of defective, verification and
certification against forum shopping
Non-compliance with the requirement
on or submission of defective
verification
As to verification, non-compliance
therewith or a defect therein does
not necessarily render the pleading
fatally defective.
- The Court may order its
submission or correction or
act on the pleading if the
attending circumstances are
such that strict compliance
with the Rule may be
Non-compliance with the requirement
on or submission of defective
certification against forum shopping
As to certification against forum
shopping, non-compliance therewith
or a defect therein, unlike in
verification, is generally not curable
by its subsequent submission or
correction thereof, unless there is a
need to relax the Rule on the ground
of “substantial compliance” or
presence of “special circumstance or
compelling reasons.”
dispensed with in order that
the ends of justice may be
served thereby.
Verification is deemed substantially
complied with when one who has
ample knowledge to swear to the
truth of the allegations in the
complaint or petition signs the
verification, and when matters
alleged in the petition have been
made in good faith or are true and
correct.
The certification against forum
shopping must be signed by all the
plaintiffs or petitioners in a case;
otherwise, those who did not sign will
be dropped as parties to the case.
- Under reasonable or
justifiable circumstances,
however, as when all the
plaintiffs or petitioners share
a common interest and
invoke a common cause of
action or defense, the
signature of only one of
them in the certification
against forum shopping
substantially complies with
the Rule.
Finally, the certification against
forum shopping must be executed by
the party-pleader, not by his counsel.
- If however, for reasonable
or justifiable reasons, the
party-pleader is unable to
sign, he must execute a
Special Power of Attorney
designating his counsel of
record to sign on his
behalf.”
(Vda. De Formoso v. PNB)
C. Allegations in Pleadings
Allegations of conditions precedent
1. Common usage – conditions precedent as matters which must be
complied with before a cause of action arises.
-
When a claim is subject to a condition precedent, the compliance of
the same must be alleged in the pleading.
Examples of conditions precedent:
a) A tender of payment is required before making a consignation.
b) Exhaustion of administrative remedies is required in certain cases
before resorting to judicial action.
c) Prior resort to brgy conciliation proceedings is necessary in certain
cases.
d) Earnest efforts toward a compromise must be undertaken when the
suit is between members of the same family and if no efforts were in
fact made, the case must be dismissed.
e) Arbitration may be a condition precedent when the contract between
the parties provides for arbitration first before recourse to judicial
remedies.
Effect of failure to comply with a condition precedent
-
Failure to comply with a condition precedent is an independent
ground for a motion to dismiss: that a condition precedent for filing
the claim has not been complied with.
Pleading a judgment
1. In pleading a judgment or decision of a domestic or foreign court,
judicial or quasi-judicial tribunal, or a board or officer, it is sufficient to
aver the judgment or decision.
2. Under Sec. 3(n) of Rule 131, there is a presumption, though
disputable, that “a court, or judge acting as such, whether in the
Philippines or elsewhere, was acting in the lawful exercise of
jurisdiction.”
Pleading an official document or act
-
It is sufficient to aver that the document was issued in compliance
with law.
With respect to an official act, it is, likewise, sufficient to allege that
the act was done also in compliance with law.
Pleading capacity to sue or be sued
Facts showing the capacity of a party to sue or be sued must be averred.
 If a party is suing or sued in a representative capacity, his authority
must also be averred.
 If a party is an organized association of persons, its legal existence
must likewise be averred.
Pleading fraud, mistake or condition of the mind
1. When making averments of fraud or mistake, the circumstances
constituting such fraud or mistake must be stated with particularity.
 The complaint must state with particularity the fraudulent acts of
the adverse party.
 These particulars which would necessarily include the specific
acts of fraud committed against the plaintiff would help apprise
the judge of the kind of fraud involved in the complaint.
2. Malice, intent, knowledge or other conditions of the mind of a person
may be averred generally.
 It is difficult to state the particulars constituting these matters;
hence, a general averment is sufficient.
Pleading alternative causes of actions or defenses
1. Under Sec. 2 of Rule 8, a party may set forth two or more statements
of a claim or defense, alternatively or hypothetically, either in one
cause of action or defense or in separate causes of action or defenses.
2. The subject provision recognizes that the liability of the defendant may
possibly be based on either one of two or more possible causes of
action. This provision in effect, also relieves a party from being
compelled to choose only one cause of action.
(La Mallorca v. Court of Appeals, 17 SCRA 739)
3. The same provision has affinity to the rule (Sec. 13, Rule 3) which
authorizes suing two or more defendants in the alternative.
(Hanover Insurance Company v. Port Service and Manila Railroad
Company, 19 SCRA 69)
4. Pleading alternative causes of action normally leads to inconsistent
claims.
Example: cause of action based on breach of contract of carriage vs. a
cause of action based on a quasi-delict.
 Under Sec. 2 of Rule 8, this situation is permissible as long as
the allegations pleaded within a particular cause of action are
consistent with the cause of action relied upon as an alternative.
 Thus, if the alternative cause of action is a breach of contract,
the allegations therein must support the facts constituting the
breach of the contract.
5. The rule does not require that all of the alternative causes of action be
sufficient for the plaintiff to be entitled to relief. It is enough that one
of them, if made independently, would be sufficient to support a cause
of action.
 “When two or more statements are made in the alternative and
one of them if made independently would be sufficient, the
pleading is not made insufficient by the insufficiency of one or
more of the alternative statements.” (Sec. 2, Rule 8)
6. The rule authorizes not only alternative causes of action but, likewise,
permits alternative defenses.
 Under said rule, a party may set forth two or more defenses
alternatively or hypothetically.
 Consistent with even the Omnibus Motion Rule which requires
that all motions attacking a pleading shall include all objections
then available, and all objections not so included shall be
deemed waived.
(stopped at page 280 in taking down notes)
Pleading actionable documents
1. The plaintiff’s cause of action or the defendant’s defense is based upon
a written instrument or document.
Actionable document – in current stage, is an instrument or
document on which an action or defense is founded.
2. Whenever an actionable document is the basis of a pleading, the rule
specifically directs the pleader to: (a) set forth in the pleading the
substance of the instrument or document, and attach the original or
the copy of the document to the pleading as an exhibit and which shall
for part of the pleading; or (b) with like effect, to set forth in the
pleading said copy of the instrument or document.
How to contest an actionable document; oath required
1. The party, who has no intent of admitting the genuineness and due
execution of the document, must contest the same by (a) specifically
denying the genuineness and due execution of the document under
oath; and (b) setting forth what he claims to be the facts. (Sec.7, Rule
8)
2. The denial must be coupled with an oath; be verified. The absence of
an oath will result in the implied admission of the due execution and
genuineness of the document.
When an oath is not required
(a)
(b)
When the adverse party does not appear to be a party to the
instrument, or
When compliance with an order for an inspection of the original
instrument is refused.
Meaning of admission
-
the party whose signature it bears admits that he signed it or that it
was signed by another for him with his authority; that at the time it
was signed, it was in words and figures exactly as set out in the
pleadings of the party relying upon it; that the document was
delivered; and that any formal requisites required by law, such as a
seal, acknowledgment, or revenue stamp, which it lacks, are waived
by him.
Defenses not cut off by the admission of genuineness and due
execution
(a)
(b)
(c)
(d)
(e)
payment or non-payment
want of consideration
illegality of consideration
usury
fraud (defenses are not inconsistent with the admission of the
genuineness and due execution of the instrument and are not
barred)
(f)
(g)
(h)
(i)
(j)
(k)
prescription
release
waiver
statute of frauds
estoppel
former recovery of discharge in bankruptcy (not likewise barred,
having no relationship to the concepts of ‘genuineness and due
execution.’)
D. Filing and Service of Pleadings, Judgments and Other Papers in
Civil Cases
Meaning of ‘filing’
(stopped taking notes at page 285)
(resumed page 302)
2(A). DEFAULT
Nature of default
1. Default is a procedural concept that occurs when the defending party
fails to file his answer within the reglementary period.
- A declaration or order of default is issued as a punishment for
unnecessary delay in joining issues.
2. The rule on default clearly establishes the “failure to answer within the
time allowed therefor” as the ground for a declaration of default.
- Default does not technically occur from the failure of the defendant
to attend either the pre-trial or the trial.
- The Court clarified that failure to attend the pre-trial does not result
in the “default” of the defendant. Instead, the failure of the
defendant to attend shall be cause to allow the plaintiff to present
his evidence ex parte and the court to render judgment on the basis
thereof.
3. The defendant’s non-appearance in the hearing and failure to adduce
evidence do not constitute default when an answer has been filed
within the reglementary period.
- 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 such hearings and cross-examine the witnesses
presented.
Requisites before a defending party may be declared in default
(a)
(b)
(c)
(d)
(e)
The court has validly acquired jurisdiction over the person of the
defending party, either by service of summons or voluntary
appearance.
The claiming party must file a motion to declare the defending party
in default.
The claiming party must prove that the defending party has failed
to answer within the period provided by the Rules of Court.
The defending party must be notified of the motion to declare him
in default.
There must be a hearing of the motion to declare the defending
party in default.
No motu propio declaration of default
1. Present rule requires the filing of a motion and notice of such motion
to the defending party; not enough that the defendant failed to answer
the complaint within the reglementary period; hence, default of the
defending party cannot be declared motu propio.
2. The trial court should not, under any circumstances, act as counsel of
the claiming party.
3. Exception: Environmental cases – should the defendant fail to answer
within the period provided, the court shall declare the defendant in
default and, upon motion of the plaintiff, shall receive evidence ex
parte and render judgment based thereon and the reliefs prayed for.
Failure to serve the answer to the adverse party
-
Defendant who files his answer in time, but failed to serve a copy
thereof upon the adverse party, may validly be declared in default.
Not fatal; declaration of default may be set aside by a timely and
proper motion with the requisite affidavit of merit and provided no
loss of time occurs.
Effect of a declaration/order of default
1. Party declared in default loses standing in court; loss of standing
prevents [him] from taking part in the trial; he forfeits his right to
present evidence supporting his allegations, to control the proceedings
or cross-examine witnesses.
2. Defendant is, nevertheless, entitled to notices of subsequent
proceedings; it is submitted that he may participate in the trial not as
a party, but as a witness.
3. A declaration of default is not tantamount to an admission of the truth
or the validity of the plaintiff’s claims
Effect of partial default
Actions of the court after the declaration/order of default
1. Under Sec. 3, Rule 9, the Court may do either of two things:
(a) Proceed to render judgment granting the claimant
such relief as his pleading may warrant; or
(b) Require the claimant to submit evidence ex parte.
2. The choice of which to take is a matter of judicial discretion.
Court not required to receive evidence personally
-
Court need not personally receive the evidence if it decides to hear
the evidence of the claiming party; reception of the evidence may
be delegated to the clerk of court.
Admission of answer filed out of time
1. Within the discretion of the trial court to permit defendant to file an
answer and be heard on the merits even after the reglementary period
for filing the answer expires.
Extension of the time to answer
1. The trial court has the discretion not only to extend the time for filing
an answer but also allow an answer to be filed after the reglementary
period.
2. The rule is that the defendant’s answer should be admitted where it is
files before a declaration of default and no prejudice is caused to the
plaintiff.
Remedies of a defending party declared in default
(a)
-
(b)
Remedy after notice of order and before judgment
File a motion under oath to set aside the order of default and
properly show that—
a. the failure to answer was due to fraud, accident, mistake, or
excusable negligence (FAMEN), and
b. he has a meritorious defense contained in an affidavit of merit.
Remedy after judgment and before judgment becomes final and
executory