may ask for execution of judgment issued in his favor (Castro v. Pena)
- Note that these principles are not applicable where the order of default is invalid for lack of proper service of summons
Remedies available to defendant in default, as held in Lina v. CA 1. The defendant in default may file a motion, under oath, to
set aside the order of default
At any time after discovery thereof (from Notice) and before judgment,
2. If the judgment has already been rendered, he may file for new trial under Sec. 1 (a) Rule 37
when the defendant discovered the default, but before the same has become final and executory 3. If defendant discovered the default after judgment had
become final and executory, he may file a petition for relief under Sec. 2, Rule 38
4. He may also appeal from the judgment rendered against him as contrary to the evidence or to the law, even if no petition to set aside the order of default has been presented by him
Certiorari Available Defendant Improvidently Declared in Default - An order of default is interlocutory and is not appealable
(Vencilan v. Vano)
- But if the order is void, remedy is certiorari; the appeal may be treated as certiorari (Akut v. CA)
- Note that a defendant who is properly declared in default is differently situated from one who is improvidently declared:
1. Defendant PROPERLY declared in default
a. He irreparably loses his right to participate in trial
b. He is limited to the remedy set forth in Sec. 2, Par. 3, Rule 41; he can only contest the judgment by default on the designated ground that it is contrary to evidence or law
2. Defendant IMPROVIDENTLY declared in default a. He retains his right to participate and the
subsequent judgment by default annulled and case remanded to court of origin
b. He has the option to avail of the same remedy in Rule 41 or to forthwith interpose a petition for certiorari seeking nullification of the order of default; or in the event that the latter has been rendered, to have both decrees declared void Illustrative Cases
1. It is an error to declare defendant in default after an answer had already been filed (Cathay Pacific v. Romillo,
Jr.)
a. The answer should be admitted (Tumambing v.
Ganzon)
2. Failure to furnish plaintiff with copy of answer is ground for default (Gonzales v. Francisco)
a. Failure to furnish plaintiff with a copy of letter- answer prepared by an ordinary layman containing a recital of facts relied upon as defenses, is a sufficient and substantial compliance, and is not a ground for default (Cequerra v. Cayetano)
3. When a counterclaim need not be answered, default is improper
a. A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default; issues raised in the counterclaim are deemed
automatically joined by allegations in the complaint (Gojo v. Goyala)
4. Declaration of default before expiration of period to answer is null and void (Denso v. IAC)
a. Filing of a special civil action for certiorari under Rule 65 does not interrupt the period to file an answer; defendant may be declared in default even if there is a pending petition for certiorari (Diaz v. Diaz) 5. A motion to dismiss assailing the merits may be
considered as an answer but the court explained that a motion to dismiss may not be considered as an answer (Matute v. CA)
Partial Default:
1. The pleading asserting a claim states a common cause of action against several defending parties
2. Some of the defending parties answer and the others fail to do so
3. The answer interposes a common defense Effect of Partial Default
- When the complaint states a common cause of action against several defendants some of whom answers and some of them do not, the court should declare defaulting defendants in default, and proceed to trial on answers of others
- It must be established that:
1. Petitioner has a common cause of action against all defendants; and
2. All defendants are indispensable parties to the case - Some rules laid down by jurisprudence:
a. The rule is not applicable to defenses personal to the answering defendant such as forgery (Luzon Surety
v. Magbanua)
b. Where a co-defendant who filed his answer died and the case was dismissed as to him, the answer he filed does not inure to the benefit of the defendant who did not file his own answer
Requisites to Lift Order of Default A Verified Motion showing:
1. Fraud, accident, mistake, or excusable neglect; AND 2. Meritorious defenses
Notes:
- The motion must be under oath or verified and accompanied by an affidavit of merits
- A meritorious defense is synonymous to a “good and valid defense”
- His motion must be accompanied by a statement of the evidence which he intends to present if the motion is granted and which is such as to warrant a reasonable belief that the result of the case would probably be otherwise if a new trial is granted
- These two requisites MUST concur
- It is within the discretion of the trial court to set aside an order of default and permit the filing of defendant’s answer even beyond the reglementary period, or to refuse to set aside the default order where it finds no justification for the delay (Malipod v. Tan)
Liberality in Setting Aside Default
Courts should be liberal in setting aside orders of default, for a default judgment is frowned upon and are not looked upon with favor for such a judgment may amount to a positive and considerable injustice to the defendant and the possibility of such serious consequences necessitates a careful examination of the
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grounds upon which the defendant asks that it be set aside. (Montinola v. Planters Bank)
Effect of Setting Aside of Default Order
- If the court sets aside the order of default, the defendant is now restored to his standing and rights in the action - But proceedings already taken are not to be disturbed
(Jamie v. Maniego)
- Although it is within the discretion of the court to re-open the evidence submitted by the plaintiff and enable the defendant to challenge the same (Denso Inc. v. IAC) - The lifting of an order of default does not revert the case to
its pre-trial stage, much less render a second pre-trial mandatory (DBP v. CA)
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Extent of Relief to be Awarded
- A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages
- The rules see to it that any judgment against him must be in accordance with the law
- The court acts in excess of jurisdiction if it awards an amount beyond the claim made in the complaint or beyond that proved by evidence
- Although the defendant would not be in position to object, elementary justice requires that only legal evidence should be considered against him
- And if an unfavorable judgment should be justifiable, it cannot exceed the amount or be different from what is prayed for in the complaint
- If the claim is not proved, the case should be dismissed Where No Defaults Allowed
1. An action for annulment or declaration of nullity of marriage
2. For legal separation
3. Special civil actions of certiorari. Prohibition and mandamus where comment instead of an answer is required to be filed
4. Summary procedure