A:
1. Actions for annulment;
2. Declaration of nullity of marriage and legal separation [Sec. 3(e), Rule 9]; and
3. In special civil actions of certiorari, prohibition and mandamus where comment instead of an answer is required to be filed.
There are several instances where declaration of default is prohibited like mortgage, the rules on summary procedures, Writ of Amparo, Writ of Habeas Data, and marriage related cases. It is not correct to say that it is absolute in civil actions that if a defendant does not file his responsive pleading, he can be declared in default. What is clear is the general rule: If a complaint is filed, summons is served upon the defendant, but defendant does file an answer within the reglementary period, the defendant can be declared to be in default upon motion of the plaintiff.
The court cannot motu propio declare the defendant in default. Motion must be made by the plaintiff before declaration of default can be had. Failure to
file the motion for declaration of default by the plaintiff can result to the complaint being dismissed for failure to prosecute for an unreasonable length of time under Rule 17. It is a dismissal with prejudice.
Suppose Plaintiff files a motion for declaration of defendant in default, but the motion was for that of an ex-parte motion to declare defendant in default. The reasoning is that since the defendant had not bothered to file an answer, there is no use of serving notice to the defendant. This is for the plaintiff to prevent the defendant from entertaining the idea that he must file an answer to prevent being declared in default. Is plaintiff correct?
No. Rule 9 is very clear that a copy of the motion to declare defendant in default should be served upon the defendant. If such copy is not served upon the defendant, that motion will not be acted upon by the court. What if the defendant filed an answer after receiving a copy of the motion to declare him in default, can the court still declare him in default?
Yes, if the court follows strictly Rule 9. But, as a matter of policy, an answer filed out of time will not result in the defendant in being declared in default. SC held repeatedly that as much as possible the technical aspects of
default should not be applied strictly in the interest of furtherance of justice. Even if the period to answer has already expired, but an answer is filed out of time, the courts will still admit that answer and deny the motion to
declare the defendant in default. The reason why SC adopted this policy is because at present, under Rule 9, if defendant is declared in default, the court can right away render a judgment in default against defendant without conducting a trial. Under Rule 9, the court is given 2 choices: to render a judgment of default based on the complaint (judgment on the pleadings), or to order the complainant to present evidence ex-parte in support of his allegations. At least in the second option, there can be presentation of evidence, unlike in the first option where only the pleadings will be the basis of the judgment. And if there is a trial ex-parte on default ordered by the court, the defendant will not be allowed to participate in the
proceedings, unless he is able to secure an order to lift the default. Rule 9 is very explicit in stating that the award in default judgments
cannot be greater than that prayed for in the complaint, even if there is an ex-parte presentation of evidence showing evidence thereto. This
limiting of award is only allowed in default cases where plaintiff is allowed to present evidence ex-parte.
Default Under Rule 18 Pre-Trial
Plaintiff does not appear during pre-trial or failed to submit pre-trial brief = dismissal of the complaint.
Defendant does not appear during pre-trial or non-submission of pre-trial brief on time = ex parte presentation of evidence by plaintiff and court can render judgment based thereon.
Comparison between Rule 9 and Rule 18 Default
Rule 9 Rule 18
In Rule 9, defendant shall be declared in default for not filing an answer.
Under Rule 18, a plaintiff shall be declared in default for not appearing during pre-trial or failure to submit a pre-trial brief, while a defendant shall be declared in default for not appearing or submitting a pre-trial brief on time. The court cannot grant a relief more
than that alleged in the complaint.
The court can grant a relief more than that alleged, based on what the plaintiff can prove based on his evidence
presented. In Rule 9, the defendant in default has
not filed an answer at all. The court is considered to have been taking pity on a defendant who had surrendered.
In Rule 18, the defendant already filed an answered. The defendant’s failure to comply with attending a pre-trial
conference or file a pre-trial brief is meted with severe sanction. Also, the fact that the court gives the plaintiff the opportunity to present his evidence, what the plaintiff proves on evidence shall be the basis of the judgment of the court.
During ex parte presentation during pre-trial, the plaintiff was able to prove damages of 2M. However, the complaint alleges only 1M. The court awarded 2M. Is the court correct? Why?
Yes, the court is correct. This is because the defendant has failed to comply with a court order to either appear in pre-trial or to submit a pre-trial brief, and thus the court can sanction defendant at default. Also, since the court allows the plaintiff, as provided under Rule 18, to present evidence to prove his allegations, what the plaintiff was able to prove shall be the basis of the court’s judgment.