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TitleLecture Notes Civil Procedure
TagsConstitutional Law Lawsuit Private Law Jurisdiction Legal Concepts
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Total Pages249
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Page 124

2.3 It may however be questioned by certiorari in case of grave abuse of
discretion. 577

3. It is an error on the part of the appellate court to order a remand, if
dismissal is elevated to it on appeal, it must decide on the evidence adduced by
the plaintiff. 578

DISTINGUISHED FROM A MOTION TO DISMISS

1. A motion to dismiss is usually filed before service and filing of an answer,
while a demurrer is made after the plaintiff rests his case.

2. A motion to dismiss is based on several grounds, while a demurrer is
based only on the failure of the plaintiff to show a right to relief.

3. A denial of the motion to dismiss will require the subsequent filing of an
answer, while the denial of a demurrer requires the subsequent presentation of
evidence.

DISTINGUISHED FROM CRIMINAL CASES

1. In both civil and criminal actions, the basis for both is the insufficiency of
evidence.

2. In a civil action, dismissal by demurrer is by motion only, while in a criminal
action, dismissal by demurrer is upon the court’s initiative or motion giving the
prosecution an opportunity to be heard.

3. In a civil action, leave is not required prior to filing, while in a criminal
action leave may / may not be obtained. If obtained, there is no waiver of right
to present evidence. If denied and if there is no leave, it is a waiver

4. In a civil action, if granted, plaintiff’s remedy is appeal, while in a criminal
action, if granted, there is no appeal as such will constitute double jeopardy.

RULE 34 – JUDGMENT ON THE PLEADINGS

JUDGMENT ON THE PLEADINGS

Katigbak v. Sandiganbayan, 405 SCRA 558577

Radiowealth Finance Company v Del Rosario, 335 SCRA 288578

Page 125

1. Can be had if the answer fails to tender an issue or otherwise admits the
material allegations of the complaint 579

1.1 There is no motu propio rendition of judgment as it is always by motion.

2. An answer fails to tender an issue when it fails to comply with the
requirements of specific denial or is deemed to have admitted the allegations in
the complaint. 580

2.1 An answer admits the material allegations when it expressly confesses the
truthfulness thereof or where it omits to deal with them all.

3. Note that when an answer raises factual issues involving damages, it is
not proper to render judgment on the pleadings as presentation of evidence is
required.

WHO MAY MOVE FOR JUDGMENT ON THE PLEADINGS

1. Only the plaintiff in original complaint, or of the counter-claim, or of the
cross claim, or of the third party complaint may so move for judgment on the
pleadings.

2. When a party moves for a judgment on the pleadings, and the same is
granted by the trial court, he hereby waives presentation of evidence. 581

WHEN NOT ALLOWED

1. Judgment on the pleadings is not allowed in cases of: (a) Declaration of
nullity of marriage (b) Annulment of marriage (c)Legal separation.
1.1 In these cases, the plaintiff is required to prove the material facts
regardless of whether the answer tenders an issue or not.

RULE 35 – SUMMARY JUDGMENT

WHAT IS SUMMARY JUDGMENT

1. Is a devise for weeding out sham claims or defenses at an early stage of
the litigation thereby avoiding the expense / loss of time involved in a trial.

Supra, Section 1, Rule 34579

Supra, Sections 8,9 and 11, Rule 8580

Alfarero v. Sevilla, 411 SCRA 387581

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