(c) Effect 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 try the case against all upon the answers thus filed and render judgment upon the evidence presented. (Sec. 3, Rule 9, Rules of Court)


 Where there are two or more defendants, some of whom answered and some did not, but the cause of action is common to all of them, how will the court proceed to try the case?

Example: A filed a case against B, C and D. The cause of action is common to all defendants. Only B answered.

Q. Can C and D be declared in default even if B filed an Answer?
A. Yes. If the defending party fails to answer within the time allowed therefore, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default.” [Section 3, Rule 9, Rules of Court]

Q. Can C and D participate in the trial?
A. No. A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. [Section 3(a), Rule 9]

Q. Does this mean therefore that the trial will no longer affect C and D?
A. No. C and D will be declared in default for their failure to file an Answer but the decision shall be rendered against them on the basis of B’s answer. The answer filed by B inures to the benefit of C and D. It is as if this answer filed by B was filed not only for B but also for C and D. So, if B wins for instance, C and D might also win. If B looses, C and D also loose.

Q. May the court divide the case by first dismissing the same as against the non-defaulted defendants and thereafter hearing it ex parte as against the defaulted defendants and rendering a default judgment against them?
A. No. This is an unfair procedure and deprives the defaulted defendants of due process as they are thereby denied the benefit of the answer and the evidence which could have been presented by their non-defaulted co-defendants, and which could be considered in favor of all. Moreover, Section 3(c), Rule 9 provides that "the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented". It is obvious that under this provision the case is tried jointly not only against the defendants answering but also against those defaulting. (Tanhu vs. Ramolete, G.R. No. L-40098, August 29, 1975)


Note:

● The rule does not apply where the defending parties are jointly sued or impleaded under separate causes of action.

● Where a co-defendant 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. Neither will the rule apply where the defenses alleged by the defendant who answered are personal to him. (Regalado, Remedial Law Compendium, Vol 1. citing Luzon Surety Co, Inc. vs. Magbanua, G.R. No. L-41804, July 30, 1976)


Jurisprudence:

● The proper mode of proceeding where a complaint states a common cause of action against several defendants, and one of them makes default, is simply to enter a formal default order against him, and proceed with the cause upon the answers of the others. The defaulting defendant merely loses his standing in court, he not being entitled appear in the suit in any way. He cannot adduce evidence; nor can he be heard at the final hearing. If the case is finally decided in the plaintiff's favor, a final decree is then entered against all the defendants; but if the suit should be decided against the plaintiff, the action will be dismissed as to all the defendants alike. In other words the judgment will affect the defaulting defendants either favorably or adversely. (Tanhu vs. Ramolete, G.R. No. L-40098, August 29, 1975)

● Where a complaint states a common cause of action against several defendants and some appear to defend the case on the merits while others make default, the defense interposed by those who appear to litigate the case inures to the benefit of those who fail to appear, and if the court finds that a good defense has been made, all of the defendants must be absolved. In other words, the answer filed by one or some of the defendants inures to the benefit of all the others, even those who have not seasonably filed their answer. (Bueno v. Ortiz, L-22978, June 27, 1968, 23 SCRA 1151)

● Whatever defense and evidence the non-defaulted respondents may present which would be applicable to the situation of the defaulted respondents should inure to the benefit of the latter. (Pinlac vs. CA, G.R. No. 91486. January 19, 2001)

● Section 7 of Rule 35  [now Section 3(a), Rule 9] provides that when a complaint states a common cause of action against several defendants, some of whom answer, and the others make default, the court shall try the case against all upon the answer thus filed and render judgment upon the evidence presented by the parties in court'. It is obvious that under this provision the case is tried jointly not only against the defendants answering but also against those defaulting, and the trial is held upon the answer filed by the former; and the judgment, if adverse, will prejudice the defaulting defendants no less than those who answer. In other words, the defaulting defendants are held bound by the answer filed by their co-defendants and by the judgment which the court may render against all of them. By the same token, and by all rules of equity and fair play, if the judgment should happen to be favorable, totally or partially, to the answering defendants, it must correspondingly benefit the defaulting ones, for it would not be just to let the judgment produce effects as to the defaulting defendants only when adverse to them and not when favorable. (Tanhu vs. Ramolete)

● In all instances where a common cause of action is alleged against several defendants, some of whom answer and the others do not, the latter or those in default acquire a vested right not only to own the defense interposed in the answer of their co-defendant or co-defendants not in default but also to expect a result of the litigation totally common with them in kind and in amount whether favorable or unfavorable. The substantive unity of the plaintiffs cause against all the defendants is carried through to its adjective phase as ineluctably demanded by the homogeneity and indivisibility of justice itself. Indeed, since the singleness of the cause of action also inevitably implies that all the defendants are indispensable parties, the court's power to act is integral and cannot be split such that it cannot relieve any of them and at the same time render judgment against the rest. Considering the tenor of the section in question, it is to be assumed that when any defendant allows himself to be declared in default knowing that his co-defendant has already answered, he does so trusting in the assurance implicit in the rule that his default is in essence a mere formality that deprives him of no more than the right to take part in the trial and that the court would deem anything done by or for the answering defendant as done by or for him. The presumption is that otherwise he would not have seen to it that he would not be in default. Of course, he has to suffer the consequences of whatever the answering defendant may do or fail to do, regardless of possible adverse consequences, but if the complaint has to be dismissed in so far as the answering defendant is concerned, it becomes his inalienable right that the same be dismissed also as to him. It does not matter that the dismissal is upon the evidence presented by the plaintiff or upon the latter's mere desistance, for in both contingencies, the lack of sufficient legal basis must be the cause. x x x.

The effects, therefore, of a failure to file a separate Answer when other co-defendants (against whom a common cause of action was alleged) had already filed theirs, are limited to the following:

1. While the non-answering defendants may be declared in default, the court would still try the case against them on the assumption that they are deemed to have adopted the Answer of the answering defendants; and

2. If declared in default, the defaulting party is deprived of no more than the right to take part in the trial. Consequently, the result of the litigation, whether favorable or unfavorable, shall affect and bind the defaulting party and the answering defendant with equal force and effect. (Grageda vs. Gomez, G.R. No. 169536, September 21, 2007)