RULE 33

DEMURRER TO EVIDENCE
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
authorizes a judgment on the merits of the case
without the defendant having to submit evidence
on his part, as he would ordinarily have to do
an aid or instrument for the expeditious
termination of an action, similar to a motion to
dismiss, which the court or tribunal may either
grant or deny
Who presents evidence first?
plaintiff
plaintiff presents evidence to prove his cause of
action
he must prove his case or his claim by
preponderance of evidence
If the plaintiff has rested and has not proven his cause of
action
Im the defendant, why will I prove my defense
when you have not proven your claim?
The defendant may move to dismiss the
complaint on the ground of insufficiency of
evidence and that is known as the demurrer.
-

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
cause of action was not proven by
preponderance of evidence

Suppose the defendant filed a motion to dismiss but the

court disagrees with the defendant. The plaintiff had
presented sufficient evidence to prove his cause of action.
The motion is denied. What will happen now?
Defendant will now present evidence to prove his
defense. That is why under Section1, If his
motion is denied, he shall have the right to
present evidence

A demurrer to evidence may be issued when,

upon the facts and the law, the plaintiff has
shown no right to relief.

Where the plaintiffs evidence together with such

inferences and conclusions as may reasonably
drawn therefrom does not warrant recovery
against the defendant, a demurrer to evidence
should be sustained

A demurrer to evidence is likewise sustainable

when, admitting every proven fact favorable to
the plaintiff and indulging in his favor all
conclusions fairly and reasonably inferable
therefrom, the plaintiff has failed to make out
one or more of the material elements of his case,
or when there is no evidence to support an
allegation necessary to his claim

NO CAUSE OF ACTION
Under Rule 16
based on complaint
Under Rule 33
based on plaintiffs evidence

MOTION TO DISMISS
MOTION TO DISMISS
UNDER RULE 16
Is made before the filing of
the answer
There are many grounds
If denied, the defendant
may file his responsive
pleading
If granted, the complaint
may be refilled, depending
on the ground for dismissal

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
Suppose the court agrees with the defendant and his
motion is granted
the court will dismiss the case
if plaintiff appeals to the CA and insists that his
evidence is sufficient to prove his cause of action
it will reverse the order of dismissal
the ca will immediately now decided the case in
favor of the plaintiff and the plaintiff will
automatically win

MOTION TO DISMISS
UNDER RULE 33
Only one ground
If denied, the defendant
may present his evidence
If granted, the complaint
may not be refilled and the
remedy of the plaintiff is to
appeal from the order of
dismissal

A demurrer to evidence is a motion to dismiss on

the ground of insufficiency of evidence and is
presented after the plaintiff rests his case
It is 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.
The evidence contemplated by the rule on
demurrer is that which pertains to the merits of
the case.
Lack of legal capacity to sue is not a proper
ground for a demurrer to evidence as it has
nothing to do with the evidence on the merits of
the complaint.