RULE 33 – DEMURRER TO THE EVIDENCE DISCUSSION OUTLINE

Who files and when filed-

Section 1 provides that the defendant is the party who may move for the
dismissal of the action after presentation by the plaintiff of evidence on the
ground that upon the facts and the law, plaintiff has shown no right to relief.

The demurrer to the evidence will subject to the provisions of Rule 15.

Effects of filing and resolution-

If granted, the action is dismissed. If appealed and reversed, he loses his right to
prevent evidence and judgment is rendered in favor of the plaintiff.

In Nicos Industrial Corporation v. CA (206 SCRA 107), it was held that an order
dismissing a case for insufficiency of evidence is a judgment on the merits; it is
imperative that it be a reasoned decision and distinctly stating therein the facts
and the law on which it is based.

If denied, defendant may present his evidence, as it does not constitute a waiver
of right to do so. The court should set a date for reception of the evidence of the
defendant. It should not proceed to grant the plaintiff relief.

The order of denial is an interlocutory order and is therefore not appealable.

Former jurisprudence that allows the order of denial to be questioned by

certiorari in case of grave abuse of discretion will have to yield to the
amendment of Section 2 that it can no longer be subject of certiorari, prohibition
or mandamus before judgment.

It is an error on the part of the appellate court to order a remand, if dismissal is

elevated to it on appeal, it must decide on the evidence adduced by the plaintiff.

Distinguished from a motion to dismiss-

A motion to dismiss is usually filed before service and filing of an answer, while a
demurrer is made after the plaintiff rests his case.

A motion to dismiss is based on several grounds, while a demurrer is based only

on the failure of the plaintiff to show a right to relief.

A denial of the motion to dismiss will require the subsequent filing of an answer,
while the denial of a demurrer requires the subsequent presentation of evidence.

Distinguished from criminal cases-

In both civil and criminal actions, the basis for both is the insufficiency of
evidence.

In a civil action, dismissal by demurrer is by motion only, while in a criminal

action, dismissal by demurrer is upon the court’s initiative or motion giving the
prosecution an opportunity to be heard.

In a civil action, leave is not required prior to filing, while in a criminal action
leave may or may not be obtained. If obtained, there is no waiver of right to
present evidence. If denied and if there is no leave, it is a waiver

In a civil action, if granted, plaintiff’s remedy is appeal, while in a criminal action,

if granted, there is no appeal as such will constitute double jeopardy.