1997 Rules on Civil Procedure Rule 33

2001 Edition <draft copy. pls. check for errors> Demurrer to Evidence

Rule 33
DEMURRER TO EVIDENCE

Q: Define demurrer to evidence.

A: Demurrer to evidence is a motion to dismiss filed by the defendant after
the plaintiff had rested his case, on the ground of insufficiency of evidence.
(Ballentine’s Law Dict., 2nd Ed., p. 358)

Nature: There is only a one-sided trial, i.e., it is only the plaintiff who has
presented evidence.

Purpose:
To discourage prolonged litigation.

Q: What is the difference between the “no cause of action” under Rule 16 and
the “no cause of action” under Rule 33?
A: Under Rule 16, the ground of no cause of action is based on the complaint,
while under Rule 33, the ground of no cause of action is based on the plaintiff’s
evidence.

NOTE: If the complaint states cause of action, the defendant cannot file a
motion to dismiss under Section 1[g], Rule 16 because he hypothetically
admits the allegations in the complaint. So they have to go to trial. Now, if
during the trial, the plaintiff failed to prove his cause of action (meaning,
there is really no cause of action), it is now proper for the defendant to file
a motion to dismiss on the ground of insufficiency of evidence under Rule
33, and not under Rule 16 because in the first place, the plaintiff’s
complaint states cause of action.

SEC. 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)

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1997 Rules on Civil Procedure Rule 33
2001 Edition <draft copy. pls. check for errors> Demurrer to Evidence

Now, there is a similar rule in criminal procedure under Rule 119, Section 23 –
demurrer to evidence in criminal cases. Rule 33 is demurrer to evidence in civil
cases.

DEMURRER TO EVIDENCE IN CRIMINAL CASES

SEC. 23. Demurrer to evidence. – After the

prosecution rests its case, the court may dismiss
the action on the ground of insufficiency of
evidence (1) on its own initiative after giving the
prosecution the opportunity to be heard or (2) upon
demurrer to evidence filed by the accused with or
without leave of court.
If the court denies the demurrer to evidence
filed with leave of court, the accused may adduce
evidence in his defense. When the demurrer to
evidence is filed without leave of court, the
accused waives the right to present evidence and
submits the case for judgment on the basis of the
evidence for the prosecution. (15a)
The motion for leave of court to file demurrer to
evidence shall specifically state its grounds and
shall be filed within a non-extendible period of
five (5) days after the prosecution rests its case.
The prosecution may oppose the motion within a non-
extendible period of five (5) days from its
receipt.
If leave of court is granted, the accused shall
file the demurrer to evidence within a non-
extendible period of ten (10) days from notice. The
prosecution may oppose the demurrer to evidence
within a similar period from its receipt.
The order denying the motion for leave of court
to file demurrer to evidence or the demurrer itself
shall not be reviewable by appeal or by certiorari
before judgment. (n)

It is now emphasized in Section 23, Rule 119 that a demurrer may be filed
with or without leave of court. If you file demurrer with or without leave and it
is granted, then you have no problem because the accused will be acquitted.

The problem is, if your demurrer is denied. Meaning, the court says that there
is sufficient evidence to prove at least the guilt of the accused. If the demurrer
was filed with prior leave of court and it is subsequently denied, the accused is
allowed to present evidence to prove his defense.

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1997 Rules on Civil Procedure Rule 33
2001 Edition <draft copy. pls. check for errors> Demurrer to Evidence

But if he filed the demurrer without prior leave of court and the demurrer is
denied, then you are already convicted because the accused has forfeited his
right to present evidence. It is practically equivalent to a waiver of his right to
present evidence. So conviction automatically follows.

NOTE: Under the new rules on Criminal Procedure, when the accused will
file a leave of court to file a demurrer, he must specifically state the grounds. (c.f.
Rule 119, Section 23, third paragraph)

Alright, that is in criminal cases. There is a similar rule in civil cases, Rule 33.

DEMURRER TO EVIDENCE IN CIVIL CASES

Q: Under the Rule on Trial, who presents evidence first?

A: It is the plaintiff. The plaintiff presents evidence to prove his cause of
action. He must prove his case or his claim by preponderance of evidence.

Q: Suppose after the plaintiff has rested, the plaintiff has not proven his cause
of action?

To borrow the language of the law, after the plaintiff has completed the
presentation of his claim, the defendant may move for dismissal on the ground
that upon the facts and the law, the plaintiff has shown no right to relief.
Meaning, you have not proven your cause of action by preponderance of
evidence.

Demurrer to Evidence and Motion to Dismiss under R 16

1. Demurrer is presented after the plaintiff has rested his case while a motion
to dismiss is presented before a responsive pleading is served by the defendant;
2. A demurrer is grounded on insufficiency of evidence while a motion to
dismiss has several grounds;
3. if the motion is denied the defendant may present his evidence while if the
motion to dismiss is denied the defendant may file his responsive pleading;
4. If the motion is granted, the complaint is dismissed. The remedy of the
plaintiff is to appeal while if the motion to dismiss is granted, the complaint is
dismissed and depending on the ground, the complaint may be re-filed.

Effect of Denial of the Demurrer to Evidence

1. If the demurrer is denied, the defendant shall have the right to present his
evidence (Sec. 1). This means that the denial of the demurrer to evidence
does not deprive the defendant to adduce evidence in his behalf.
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1997 Rules on Civil Procedure Rule 33
2001 Edition <draft copy. pls. check for errors> Demurrer to Evidence

2. Where a court denies a demurrer to evidence, it should set the date for the
reception of the defendant’s evidence in chief. It should not proceed to
grant the relief demanded by the plaintiff (Northwest Airlines, Inc. vs. CA
284 SCRA 408).
3. An order denying a demurrer to the evidence is interlocutory and is
therefore, not appealable. It can however, be the subject of a petition for
certiorari in case of grave abuse of discretion or an oppressive exercise of
judicial authority (Katigbak vs. Sandiganbayan 405 SCRA 558).
4. Note that a party who, files a demurrer to evidence that is subsequently
denied in an election case, cannot insist on the right to present evidence.
The provision of the Rules of Court governing demurrer to evidence does
not apply to an election case (Gementiza vs. Comelec 353 SCRA 724). The
Rules of Court, under the express dictum in Sec. 4 of Rule 1 “shall not
apply to election cases, land registration, cadastral, naturalization and
insolvency proceedings…”

Effect of Granting of the Demurrer to 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.”

1. If the demurrer is granted, the case shall be dismissed. However, if on

appeal the order granting the motion is reversed, the defendant loses the
right to present evidence (Sec. 1; Republic vs. Tuvera GR No. 148246,
February 16, 2007).
2. 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 (Radioweath Finance
Corporation vs. del Rosario 335 SCRA 288).
3. A demurrer to evidence abbreviates judicial proceedings, it being an
instrument for the expeditious termination of an action. Caution, however,
must be exercised by the party seeking dismissal of a case upon this
ground as under the rules, if the movant’s plea for the dismissal on
demurrer to evidence is granted and the order of dismissal is reversed on
appeal, he loses his right to adduce evidence. If the defendant’s motion for
judgment on demurrer to evidence is granted and the order is
subsequently reversed on appeal, judgment is rendered in favor of the
adverse party because the movant loses his right to present evidence. The
reviewing court cannot remand the case for further proceedings; rather, it
should render judgment on the basis of the evidence presented by the
plaintiff (The Consolidated Bank and Trust Corporation vs. Del Monte
Motor Works, Inc., GR No. 143338, July 29, 2005).
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1997 Rules on Civil Procedure Rule 33
2001 Edition <draft copy. pls. check for errors> Demurrer to Evidence

Q: Suppose the court agrees with the defendant and his motion is granted. In
other words, the defendant has succeeded in dismissing the complaint without
even presenting his own side – I won a boxing bout without even throwing a
single punch. What will happen now?
A: The court will dismiss the case. BUT if plaintiff appeals to the CA and
insists that his evidence is sufficient to prove his cause of action, therefore the
order of the dismissal by the RTC is wrong, and CA agrees with the plaintiff –
that the plaintiff’s evidence is sufficient to prove his claim – the CA will reverse
the order of dismissal. The CA will immediately now decide the case in favor of
the plaintiff and the plaintiff will automatically win.

Q: The defendant may argue: “Well, the order was reversed. Eh di ibalik ang kaso.
Let’s go back to the RTC and let me present my side.” Is the defendant correct?
A: NO. Under Section 1, if your demurrer is granted by the trial court and is
reversed on appeal, the defendant loses forever his right to present his evidence.
Therefore defendant has no more right to present his side. That is tantamount to
saying the defendant automatically loses the case.

Favorite BAR QUESTION: How do you distinguish the rule on demurrer of

evidence in civil cases with the rule of demurrer in criminal cases?
A: The following are the distinctions:

1. In CIVIL cases when the demurrer is denied, the defendant will now
present his evidence to prove his defense because the defendant does
not waive his right to present in the event the demurrer is denied;
whereas
In CRIMINAL cases, if the demurrer of the accused is denied the accused
is no longer allowed to present evidence if he had no prior leave of
court;

2. In CIVIL cases, if the defendant’s demurrer is granted and the case is

dismissed and the plaintiff appeals to the appellate court and on
appeal the court reverses the order of dismissal, the appellate court
renders judgment immediately in favor of the plaintiff. There is no
more remanding. The defendant loses his right to present evidence;
whereas
In CRIMINAL cases, if the demurrer is granted, there is no more appeal
by the prosecution because the accused has already been acquitted.
Otherwise, there will be a case of double jeopardy;

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1997 Rules on Civil Procedure Rule 33
2001 Edition <draft copy. pls. check for errors> Demurrer to Evidence

3. In CIVIL cases, the court cannot on its own initiative, dismiss the case
after the plaintiff rests without any demurrer by the defendant. There
is no such thing as motu propio demurrer; whereas
In CRIMINAL cases, the court may dismiss the action on its own
initiative after giving the prosecution the chance to present its
evidence.

In both cases, the motion is raised only after the prosecution or the plaintiff
has presented his case and the ground is based on insufficiency of evidence.

Take note that under Rule 9 of the Old Rules of Court, defenses and objections
not pleaded either in a motion to dismiss or in the answer are deemed waived.
Among the exceptions (lack of jurisdiction, res adjudicata, etc.) is “when there is
no cause of action.” Meaning, the ground of no cause of action cannot be waived.
The same can be raised at any stage during the trial or even on appeal.

Now, such ground is not anymore found under the New Rules. What does it
mean? Do you mean to tell me that such ground is waivable now? NO. The
ground of no cause of action is now incorporated under Rule 33, such that during
the trial when there is really no cause of action, your remedy is to file a demurrer
to evidence under Rule 33. So there is no need to refer to Rule 9 anymore.

ENOJAS vs. COMELEC

283 SCRA 229 [1997]

HELD: “The motion to dismiss on the ground of jurisdiction can be

easily be differentiated from a motion to dismiss on demurrer to
evidence in that, in the latter case, the movant admits the truth or factual
allegations in the complaint and moves for the dismissal of the case on
the ground of insufficiency of evidence. The legal effect and
consequence of a demurrer to evidence is that in the event that the
motion to dismiss on demurrer to evidence is granted and the order of
dismissal is reversed on appeal, the movant loses his right to present
evidence in his behalf.”
“However, in a motion to dismiss on the ground of lack of
jurisdiction, the movant does not lose his right to present evidence.”
“It likewise bears stressing that a demurrer to evidence under Rule 33
is in the nature of a motion to dismiss on the ground of insufficiency of
evidence and is presented after the plaintiff rests its case. It thus differs
from a motion to dismiss under Rule 16 which is grounded on
preliminary objections and is presented at the outset of the case, that is

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1997 Rules on Civil Procedure Rule 33
2001 Edition <draft copy. pls. check for errors> Demurrer to Evidence

before a responsive pleading is filed by the movant and within the

period for the filing thereof.”

Judgment on Demurrer to Evidence is a judgment rendered by the

court dismissing a case upon motion of the defendant, made after
plaintiff has rested his case, on the ground that upon the facts presented
and the law on the matter, plaintiff has not shown any right to relief.

Note: The requirement under the Rule would apply if the demurrer is
granted, for in this event, there would in fact be adjudication upon the
merits of the case, leaving nothing more to be done (Nepomuceno v.
COMELEC, GR No. L-60601, Dec. 29, 1983).

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