DEMURRER TO EVIDENCE
After the plaintiff has completed the presentation of his evidence,
the defendant may move for dismissal on the ground that upon the facts
and the law the plaintiff has shown no right to relief. [Sec. 1, Rule 33]
5
Ground
Insufficiency of evidence, that upon the facts and the law the
plaintiff has shown no right to relief. [Sec. 1, Rule 33]
10 Effect of Denial
If the demurrer is denied, the defendant shall have the right to
present his evidence. [Sec. 1, Rule 33]
The order denying the demurrer to evidence shall not be the subject
of an appeal or petition for certiorari, prohibition or mandamus before
judgment. [Sec. 2, Rule 33]
Note: The remedy then is to proceed to trial, and if the defendant
loses, to appeal the judgment and include in the assigned errors, the
denial of the demurrer to evidence.
5
Effect of Grant
If the demurrer is granted, the case shall be dismissed. [Sec. 1, Rule 33]
Note: The grant of a demurrer is considered an adjudication on the
10 merits and the proper remedy would be to appeal the judgment. The
appellate court should not remand the case for further proceedings but
should render judgment on the basis of the evidence submitted by the
plaintiff. [Consolidated Bank and Trust Corp. v. Del Monte Motor Works, Inc., G.R. No.
143338 (2005)]
15
Waiver of Right to Present Evidence
If the order granting the demurrer is reversed on appeal, the
defendant is deemed to have waived his right to present evidence. [Sec. 1,
5 Rule 33; Republic v. Tuvera, G.R. No. 148246 (2007)]
Action on Demurrer to Evidence
A demurrer to evidence shall be subject to the provisions of Rule 15.
10 [Sec. 2, Rule 33]
Being subject to the provisions of Rule 15, it follows that a demurrer
to evidence is15 requires that there must be proof of service to the other
party who shall have 5 calendar days to file an opposition. The court
shall then resolve the motion within 15 calendar days from the receipt
15 of such opposition.
Distinguish: Demurrer to Evidence in a Civil Case and
Demurrer to Evidence in a Criminal Case
Demurrer to Evidence in a Civil Demurrer to Evidence in a
Case Criminal Case
Anchored upon the failure of the Predicated upon prosecution’s
plaintiff to show that he is entitled insufficiency of evidence. [Sec. 23,
to relief, upon the facts and the Rule 119]
law. [Sec. 1, Rule 33
May be filed with or without leave
of court [Sec. 23, Rule 119
If the demurrer is denied, the If the defense filed the demurrer
defendant does not lose his right to with leave of court, the defense
present his evidence. may present evidence upon denial
of demurrer.
When without leave of court and
the demurrer is denied, thedefense
is deemed to have waived the right
to present evidence and thus
submits the case for judgment on
the basis of evidence offered by
the prosecution.
If the demurrer is granted, the No appeal is allowed when a
plaintiff may appeal and if the demurrer is granted because the
dismissal is reversed, the dismissal is deemed an acquittal.
defendant is deemed to have [People v. Tan, G.R. No. 167526 (2010)]
waived his right to present his
evidence.
It is the defendant who invokes The court may, on its own
demurrer by moving for the initiative, may dismiss the action
dismissal of the case. after giving the prosecution an
The court does not do so on its opportunity to be heard.
own initiative.
