Notes on default in Civil Procedure
When is a declaration of default is proper? What are the grounds for the declaration of default?
[1] Failure of a defending party to answer within the time allowed (Rule 9, Sec. 3). This includes failure to answer a complaint, permissive counterclaim, cross-claim, third-party complaint, etc.
[2] Wilful failure to appear before an officer to make a deposition, after being served with a proper notice, or failure to serve answers after proper service of interrogatories (Rule 29, Sec. 3)
[3] Failure to appear at pretrial (Rule 18, Sec. 5)
PLEASE TAKE NOTE OF THE FOLLOWING:
[1] A declaration of default cannot be made by the court motu proprio; there must be a motion to that effect. (The Philippine British Co. , Inc. vs. De Los Angeles, 1975)
[2] If no motion to declare defendant in default is filed, the complaint should be dismissed for failure to prosecute.
[3] A defendant’s answer should be admitted where it had been filed before it was declared in default, and no prejudice is caused to plaintiff.What is the effect of an order of default?
[1] A party in default loses his standing in court. He cannot appear therein, adduce evidence and be heard nor take part in trial. He cannot file a motion to dismiss without first filing a motion to set aside the order of default. He loses his right to present evidence, control the proceedings and examine the witnesses or object to plaintiff’s evidence.
[2] A motion to declare the defending party in default should be served upon him. A party in default, however, shall be entitled to notice of subsequent proceedings but not to take part in the trial.
[3] Being declared in default does not constitute a waiver of all rights. What is waived is only the right to be heard and to present evidence during trial while default prevails. A party in default is still entitled to notice of final judgments and orders and proceedings taken subsequent thereto. He may be cited and testify as a witness.
[4] A party validly declared in default irreparably loses the right to participate in the trial. A defendant improvidently declared in default may retain and exercise such right to participate in the trial after the order of default and the subsequent judgment by default are annulled and the case remanded to the court of origin. The former can only appeal. The latter may file a petition for certiorari. (Indiana Aerospace University vs. CHED)
[1] Failure of a defending party to answer within the time allowed (Rule 9, Sec. 3). This includes failure to answer a complaint, permissive counterclaim, cross-claim, third-party complaint, etc.
[2] Wilful failure to appear before an officer to make a deposition, after being served with a proper notice, or failure to serve answers after proper service of interrogatories (Rule 29, Sec. 3)
[3] Failure to appear at pretrial (Rule 18, Sec. 5)
PLEASE TAKE NOTE OF THE FOLLOWING:
[1] A declaration of default cannot be made by the court motu proprio; there must be a motion to that effect. (The Philippine British Co. , Inc. vs. De Los Angeles, 1975)
[2] If no motion to declare defendant in default is filed, the complaint should be dismissed for failure to prosecute.
[3] A defendant’s answer should be admitted where it had been filed before it was declared in default, and no prejudice is caused to plaintiff.What is the effect of an order of default?
[1] A party in default loses his standing in court. He cannot appear therein, adduce evidence and be heard nor take part in trial. He cannot file a motion to dismiss without first filing a motion to set aside the order of default. He loses his right to present evidence, control the proceedings and examine the witnesses or object to plaintiff’s evidence.
[2] A motion to declare the defending party in default should be served upon him. A party in default, however, shall be entitled to notice of subsequent proceedings but not to take part in the trial.
[3] Being declared in default does not constitute a waiver of all rights. What is waived is only the right to be heard and to present evidence during trial while default prevails. A party in default is still entitled to notice of final judgments and orders and proceedings taken subsequent thereto. He may be cited and testify as a witness.
[4] A party validly declared in default irreparably loses the right to participate in the trial. A defendant improvidently declared in default may retain and exercise such right to participate in the trial after the order of default and the subsequent judgment by default are annulled and the case remanded to the court of origin. The former can only appeal. The latter may file a petition for certiorari. (Indiana Aerospace University vs. CHED)
