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. (1a, R35)
 Definition

◉ Demurrer to evidence is defined as "an objection by

one of the parties in an action, to the effect that the
evidence which his adversary produced is insufficient
in point of law, whether true or not, to make out a case
or sustain the issue. (Gutib v. Court of Appeals, G.R. No.
131209, August 13, 1999)

◉ 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)
 Effects of Demurrer to Evidence

CIVIL CASES CRIMINAL CASES

If granted
The order of dismissal is not appealable
The order of dismissal is appealable. because of the constitutional policy
against double jeopardy.
If denied
The accused may adduce his evidence
only if the demurrer is filed with leave
The defendant may proceed to present
of court. He cannot present his
his evidence.
evidence if he filed the demurrer
without leave of court.
If on appeal the order of dismissal is reversed

The defendant shall be deemed to

have waived the right to present Not applicable.
evidence.
 Demurrer to Evidence vs.
Motion to Dismiss

Demurrer to Evidence Motion to Dismiss

Grounds
Motion to dismiss is grounded on
Demurrer to evidence is based on
preliminary objections enumerated
insufficiency of evidence.
under Rule 16.

When to file

A motion to dismiss is filed before a

A demurrer to evidence is filed after
responsive pleading is made by the
plaintiff has rested its case.
defendant.
Radiowealth Finance Company
vs.
Spouses Del Rosario
◉ Consequence of a Reversal, on Appeal, of a Demurrer to Evidence

◉ G.R. No. 138739 July 6, 2000

 Facts

Spouses Vicente and Maria del Rosario executed

a Promissory Note in favor of Radiowealth Finance
Company. Despite repeated demands, they failed to
pay their obligations, hence, plaintiff filed a Complaint
for the collection of a sum of money. Plaintiff formally
offered its evidence and exhibits and rested its case.

Defendants filed on a Demurrer to Evidence for

alleged lack of cause of action. The trial court
dismissed the complaint for failure of petitioner to
substantiate its claims, the evidence it had presented
being merely hearsay.
 Facts

On appeal, the CA reversed the decision of the

trial court and remanded the case for further
proceedings. However, Plaintiff further elevate the
matter to the Supreme Court raising the lone issue that
the CA erred in ordering the remand of this case to the
trial court instead of rendering judgment on the basis
of petitioners evidence.
 Ruling

Defendants who present a demurrer to the

plaintiff’s evidence retain the right to present their own
evidence, if the trial court denies the motion.

However, if the trial court grants the same but on

appeal, the appellate court reversed the dismissal of
the case, the defendants lose the right to present their
own evidence.

Hence, the appellate court shall resolve the case

and render judgment on the merits, inasmuch as
a demurrer aims to discourage prolonged litigations.
 GEMENTIZA vs.
COMMISSION ON ELECTIONS
◉ Rules of Civil Procedure on demurrer to evidence cannot apply to
election cases.

◉ G.R. No. 140884 March 6, 2001

 Facts

Petitioner Gelacio P. Gementiza and private

respondent Victorio R. Suaybaguio, Jr. were candidates for
Vice-Governor. The provincial board of canvassers
proclaimed petitioner the winner. Claiming that fraud and
irregularities were committed against him, private
respondent promptly filed an election protest with the
COMELEC.

Private respondent waived the presentation of

testimonial evidence and rested his case solely on the basis
of documentary evidence consisting of the revision reports
and other election-related documents. Petitioner filed a
demurrer to evidence. But it was denied by the COMELEC.
 Facts

Petitioner filed a motion for reconsideration

contending that under Rule 33 of the Rules of Civil
Procedure, he has the right to present his evidence
even if his demurrer was denied. The COMELEC also
denied the motion for reconsideration. Petitioner
elevated the matter to the Supreme Court.
 Ruling

1. It should be underscored that the nature of an

election protest case differs from an ordinary civil
action. Because of this difference, the Rules of Civil
Procedure on demurrer to evidence cannot apply to
election cases even "by analogy or in a suppletory
character“.

2. Demurrer to evidence cannot be appealed as it is in

the nature of a interlocutory order.
 Thanks!

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