CIVIL PROCEDURE 2018 – 2019

DEMURRER TO EVIDENCE Demurrer to Evidence vs Motion to Dismiss

Motion to Dismiss Demurrer to
See Rule 33 Rules of Court Evidence
Section 1. Demurrer to Evidence – After the plaintiff has Grounds (a) The court has no failure of the
completed the presentation of his evidence, the defendant jurisdiction over the plaintiff to show
may move for dismissal on the ground that upon the facts person of the that, upon the facts
and the law, the plaintiff has shown no right to relief. If his defending party and the law, he is
motion is denied, he shall have the right to present entitled to relief
evidence. If the motion is granted but on appeal the order (b) That the court has no
of dismissal is reversed, he shall be deemed to have waived jurisdiction over the
the right to present evidence. subject matter of the
claim
Demurrer to Evidence in Civil Cases
vs in Criminal Cases (c) Improper venue
Civil Cases Criminal Cases
Anchored upon the failure (d) That the plaintiff has
Predicated upon
no legal capacity to
of the plaintiff to show insufficiency of evidence
sue
that, upon the facts and
the law, he is entitled to
relief (e) That there is another
action pending
between the same
Requires no prior leave of May be filed with or without
parties for the same
court leave of court
cause (litis pendentia)
When the demurrer is The accused may adduce
(f) That the cause of
denied, the defendant does his evidence in his defense action is barred by
not lose his right to present only when the demurrer that
prior judgment or by
his evidence was denied was filed with
the statute of
leave of court.
limitations
When filed without leave of
(g) That the pleading
court and the demurrer is
asserting the claim
denied, the accused waives
states no cause of
his right to present evidence action
and submits the case for
(h) That the claim or
judgment on the basis of the
demand set forth in
evidence for the prosecution.
the plaintiff’s plead
has been paid,
If the demurrer to evidence No appeal is allowed, as a waived, abandoned,
is granted, the plaintiff may rule, when a demurrer to or otherwise
appeal and if the dismissal evidence is granted in a extinguished
is reversed, the defendant is criminal case because the (i) That the claim on
deemed to have waived his dismissal is deemed an which the action is
right to present his evidence. acquittal. founded is
unenforceable under
It is the defendant who The court may, on its own the provisions of the
invokes a demurrer by initiative, dismiss the action statute of frauds
moving for the dismissal of after giving the prosecution (j) That a condition
the case. The court does not an opportunity to be heard. precedent for filing
do so on its own initiative. the claim has not
been complied with

Dismissal If the demurrer to evidence The dismissal of the

is granted, the plaintiff complaint under this
may appeal and if the section shall be
dismissal is reversed, the without prejudice to
defendant is deemed to the prosecution
have waived his right to except grounds
present his evidence. under (f) (h) and (i).

Generally, appeal is
not the proper
remedy but refiling of
the case.

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 Demurrer to Evidence vs
Dismissal of Actions under Rule 17
Demurrer to Evidence
If the demurrer to evidence
is granted, the plaintiff
may appeal and if the
dismissal is reversed, the
defendant is deemed to
have waived his right to
present his evidence.
Dismissal under Rule 17
(A) Dismissal Due to Fault
of Plaintiff
Grounds:
(a) Failure to appear on
the date of
presentation of his
evidence in chief on
the complaint
(b) Failure to prosecute
his action for an
unreasonable length
of time
(c) Failure to comply with
the Rules
(d) Failure to comply with
any orders of the
court
The dismissal shall have
the effect of adjudication
upon the merits, unless
otherwise declared by the
court.
Remedy of dismissal – is granted, the plaintiff
Appeal
(B) Dismissal upon Motion
of Plaintiff
Unless otherwise specified in
the order, dismissal is
without prejudice.
Appeal is not the appropriate
remedy.
Demurrer to Evidence vs Summary Judgment
Demurrer to Evidence
If the demurrer to evidence
is granted, the plaintiff
may appeal and if the
dismissal is reversed, the
defendant is deemed to
have waived his right to
present his evidence.
Demurrer to Evidence vs Judgment on Pleadings
Demurrer to Evidence
If the demurrer to evidence
may appeal and if the
dismissal is reversed, the
defendant is deemed to
have waived his right to
present his evidence.
Summary Judgment
(A) Final Order or Decision
from Summary Judgment
There is no trial. No genuine
issue.
Remedy – Appeal (since it is
an adjudication on the
merits)
(B) Order granting the
Motion for Summary
Judgment
Remedy – Certiorari under
Rule 65 (since it is an
interlocutory order)
Judgment on Pleadings
(A) Final Order or Decision
from Judgment on
Pleading
There is no issue.
Remedy – Appeal (since it is
an adjudication on the
merits)
(B) Order Granting
Judgment on Pleadings
Remedy – Certiorari under
Rule 65
(since it is an interlocutory
order)
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