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A party declared in default may at any time after notice
thereof and before judgement may file:
a. A motion under oath to set aside the order of
default;
b. Upon proper showing that his failure to answer was due
to fraud, accident, mistake or excusable negligence
c. That he has a meritorious defense; and
d. In such case, the order of default may be set aside on
such terms and conditions as the judge may
impose in the interest of justice
In case of denial of the motion to lift order of default, the
defendant-movant may file a motion for reconsideration.
In case of denial of the motion for reconsideration, then
petition for certiorari under Rule 65 on the ground of grave
abuse of discretion amounting to lack or in excess of
jurisidiction since the order is interlocutory in character.
Effects of Partial Default: When a pleading asserting a claim
states a common cause of action against several defending
parties, some of whom answer and the others fail to do so, the
court shall:
a. Try the case against all upon the answers thus filed; and
b. Render judgement upon the evidence presented
A judgement rendered against a party in default shall:
a. Not exceed the amount; or
b. Be different in kind from that prayed for;
c. Nor award unliquidated damages
While as a general rule, certiorari may not be availed of where
an appeal is available and an appeal lies from a judgement by
default, nevertheless if there was grave abuse of discretion
on the part of the trial court, the special civil action of
certiorari may be availed of by the aggrieved party as this is an
exception to said general rule. Certiorari would provide a more
speedy and adequate remedy since the aggrieved party in a
default judgement had no opportunity to adduce evidence in the
courts, hence on appeal only the self-serving evidence presented
by the plaintiff in the ex parte reception thereof would be
considered (Continental Leaf Tobacco Phil Inc. vs CA)
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not file an Answer and allow himself to be declared in default
had he known that the plaintiff will be accorded a relief greater
than or different in kind from that sought in the Complaint. No
doubt, the reason behind Section 3(d), Rule 9 of the Rules
of Court is to safeguard defendants right to due process
against unforeseen and arbitrarily issued judgment. This,
to the mind of this Court, is akin to the very essence of
due process. It embodies "the sporting idea of fair play" and
forbids the grant of relief on matters where the defendant was
not given the opportunity to be heard thereon. (Diona vs.
Balangue)
Annulment of Judgement is not a remedy for default:
Annulment of Judgment under Rule 47 of the Rules of Court is a
recourse equitable in character and allowed only in exceptional
cases where the ordinary remedies of new trial, appeal, petition
for relief or other appropriate remedies are no longer available
through no fault of petitioner. (Phil. Tourism Authority vs.
Phil. Golf Development & Equipment Inc.)
INSTANCES WHERE ORDER OF DEFAULT MAY BE ISSUED
An order of default may be issued by the court in case of failure
of the defendant to file an answer in the ff. instances:
a. Original complaint;
b. Permissive counterclaim;
c. Cross-claim
d. Third/ Fourth party complaint;
e. Complaint- in- Intervention;
f. Interrogatories to parties; and
g. Complaint for Interpleader
DEFAULT IN COMPLAINT-IN-INTERVENTION
Sec 4, Rule 19 of the 1997 Rules
original parties to file an
intervention within 15 days
admitting the same unless a
court.
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after the reglementary period for filing the answer expires. The
Rules of Court provides for discretion on the part of the trial
court not only to extend the time for filing an answer but also to
allow an answer to be filed after the reglementary period.
(Sablas vs. Sablas)
NON-APPLICABILITY
PROCEEDINGS
OF
DEFAULT
ORDER
IN
SUMMARY