RULE 33

DEMURRER TO EVIDENCE

Section 1. 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. If his motion
is denied he shall have the right to present evidence. If the motion is granted but on
appeal the order of dismissal is reversed he shall be deemed to have waived the
right to present evidence.

What is a demurrer to evidence?

• A demurrer to evidence is a motion to dismiss on the ground of insufficiency of

evidence and is presented after plaintiff rests his case.

• It is defined as "an objection or exception by one of the parties in an action at

law, to the effect that the evidence which his adversary produced is insufficient
in point of law (whether true or not) to make out his case or sustain the issue." The
demurrer challenges the sufficiency of the plaintiff’s evidence to sustain a
verdict. In passing upon the sufficiency of the evidence raised in a demurrer, the
court is merely required to ascertain whether there is competent or sufficient
proof to sustain the indictment or to support a verdict of guilt. (Heirs of Pedro
Pasag, et al. vs. Sps. Parocha, G.R. No. 155483, April 27, 2007

What is the ground for demurrer to evidence in civil case?

• The only ground for demurrer to evidence is that the plaintiff has shown no right
to relief.
When can a demurrer to evidence be filed?

• It can be filed after plaintiff completed the presentation of his evidence. This is
exactly after the court ruled on the plaintiff's formal offer of evidence. (See
Cabador vs People, G.R. No. 186001, October 2, 2009)

Is leave of court necessary to file a demurrer to evidence in civil cases?

• In civil cases, there's no need for leave of court.

What is the implication of the denial of the demurrer to evidence? What is the
remedy of the defendant in case of denial?

• From the point of view of the court, the evidence of plaintiff is sufficient prima
facie to support his case. Hence, the remedy of the defendant is to present his
evidence. The court should set the date for the reception of the defendant’s
evidence-in-chief (Northwest Airlines vs. CA, G.R. No. 120334. January 20, 1998)

If the demurrer is denied, can the defendant file a motion for reconsideration?

• Yes.

If the motion for reconsideration is denied, can defendant appeal the denial of
the demurrer? Can he file a petition for certiorari?

• An order denying a demurrer to evidence is interlocutory and is therefore, not

appealable. It can however be the subject of a petition for certiorari under Rule
65 in case of grave abuse of discretion or an oppressive exercise of judicial
authority.
What is the implication of the grant of the demurrer to evidence? What is the
effect of the grant? What then is the remedy of the plaintiff?

• The grant of the demurrer to evidence is a pronouncement by the court that the
evidence of plaintiff is not sufficient to prove his case. Hence, the case is
dismissed. The remedy of plaintiff is to appeal the order of dismissal.

If plaintiff appealed and the appellate court reversed the order of dismissal,
what is the implication of such reversal?
• The implication is that the evidence of plaintiff is sufficient to prove his case. So,
the order of dismissal is set aside.

What is the effect of the reversal order of dismissal on the right of defendant to
present his evidence?

• Defendant cannot present his evidence, because by electing to file a demurrer

to evidence, he, in effect, submitted the case for decision solely on the basis of
the evidence of the plaintiff.
• In the case of reversal, the appellate court shall resolve the case and render
judgment on the merits based on the available evidence.
• It is not correct for the appellate court reversing the order granting the demurrer
to remand the case to the trial court for further proceedings. The appellate court
should, instead of remanding the case, render judgment on the basis of the
evidence submitted by the plaintiff (Radiowealth Finance Corp. vs. Del
Rosario, G.R. No. 138739. July 6, 2000).

In a civil case, can a court render a demurrer to evidence motu proprio?

• No.
Demurrer to evidence vs. Motion to dismiss

1. When to file. A motion to dismiss is filed before a responsive pleading is made

by the defendant. A demurrer to evidence is filed after plaintiff has rested its
case.

2. Grounds. Motion to dismiss is grounded on preliminary objections enumerated

under Rule 16. Demurrer to evidence is based on insufficiency of evidence.

Demurrer to evidence in civil vs. criminal cases

1. Leave of court. In a civil case, leave of court is not required before filing a
demurrer. In a criminal case, leave of court may be filed with or without leave of
court.

2. Effect if granted. In a civil case, if the demurrer is granted the order of dismissal
is appealable. In a criminal case, if the demurrer is granted, the order of
dismissal is not appealable because it will constitute double jeopardy.

3. Effect if denied. In a civil case, if a demurrer is denied, the defendant may

proceed to present his evidence. In a criminal case, if the demurrer is denied,
the accused may adduce his evidence only if the demurrer is field with leave of
court.

4. Motu proprio. In a civil case, the court cannot render a demurrer to evidence
motu proprio. In a criminal case, the court can render a demurrer to evidence
on its own initiative after giving the prosecution the opportunity to be heard.