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. Motu proprio. In a civil case, the court cannot render a demurrer to evidence motu proprio. 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.Ĥ. 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 granted, the order of dismissal is not appealable because it will constitute double jeopardy.ģ. In a civil case, if the demurrer is granted the order of dismissal is appealable. In a criminal case, leave of court may be filed with or without leave of court.Ģ. Leave of court. In a civil case, leave of court is not required before filing a demurrer. Demurrer to evidence is based on insufficiency of evidence.ĭemurrer to evidence in civil vs. Motion to dismiss is grounded on preliminary objections enumerated under Rule 16. A demurrer to evidence is filed after plaintiff has rested its case.Ģ. When to file. A motion to dismiss is filed before a responsive pleading is made by the defendant. If the same ground is raised as an affirmative defense, the court may motu proprio dismiss the case.In a civil case, can a court render a demurrer to evidence motu proprio?ĭemurrer to evidence vs. While a motion to dismiss is a litigious motion (Rule 15, Section 5), the court has discretion not to hold a hearing and proceed to rule on the motion. In case of affirmative defenses, however, raising other grounds (in addition to lack of jurisdiction over the person of the defendant) does not amount to a voluntary appearance. Incidentally, in case of a motion to dismiss based on improper service of summons, the court may deputize the defendant’s counsel to serve the summons. 20 of the 1997 Rules) that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. This is a reversal of the previous rule (Rule 14, Sec. Rule 14 of the 2019 Amendments provides that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall be deemed a voluntary appearance of the defendant (Sec. However, the 2019 Amendments recognizes one more ground - lack of jurisdiction over the person of the defendant (Rule 14, Sec. This may give rise to the impression that only three grounds may be used to support a motion to dismiss. VOLUNTARY APPEARANCEĪ motion to dismiss is a prohibited motion if not based on the three grounds mentioned above. The issuance of an order granting a motion to dismiss or affirmative defenses, based on the three grounds enumerated above, bars the refiling of the same action or claim.Įxcept these three grounds, defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived (Rule 9, Sec. 3) That the cause of action is barred by a prior judgment or by the statute of.2) That there is another action pending between the same parties for the same.1) That the court has no jurisdiction over the subject matter of the claim.12), except when it is filed on the basis of the following grounds: The most logical implication of the deletion is this - the filing of a motion to dismiss does NOT toll the running of the 30-day period to file an Answer (the 2019 Amendments also extended the reglementary period from 15 days to 30 calendar days).Ī motion to dismiss is a prohibited motion (Rule 15, Sec. These provisions are not found in the 2019 Amendments. Under the old 1997 Rules, a motion to dismiss may be filed before the filing of the Answer and, if the motion is denied, the movant still has at least 5 days within which to file an Answer. The 2019 Amendments does not expressly provide when a motion to dismiss may be filed, as well as the effect of the filing/denial of the motion.
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