Definition and Nature
A demurrer to evidence is a motion filed by a defendant challenging the sufficiency of the plaintiff's evidence after the plaintiff has completed its presentation. It serves as an objection or exception to the evidence presented by the plaintiff. Essentially, it is a motion to dismiss grounded on the assertion that the plaintiff has failed to establish a right to relief or a prima facie case based solely on the evidence presented. It is a remedy available to the defendant.
Grounds for Filing
The sole ground for filing a demurrer to evidence is the insufficiency of the evidence presented by the plaintiff.
Timing of Filing
A demurrer to evidence is properly filed after the plaintiff has finished presenting their evidence. Filing a motion to dismiss based on similar grounds before or during the plaintiff's presentation of evidence would be considered a motion to dismiss under other rules, not a demurrer to evidence.
Effect of Granting the Demurrer
If the court grants the demurrer to evidence, the case is dismissed. This signifies that the court finds the plaintiff's evidence insufficient to support the claim or show a right to relief.
Effect of Denying the Demurrer
If the court denies the demurrer to evidence, the defendant retains the right to present their own evidence.
Remedy Following Denial
An order denying a demurrer to evidence is not subject to immediate appeal. Neither a direct appeal nor a petition for certiorari, prohibition, or mandamus is the proper remedy before the court renders final judgment. When the demurrer is denied, the defendant's proper course of action is to proceed with the trial and present their evidence. If the defendant receives an adverse final judgment on the merits, they may then include the denial of the demurrer to evidence as an alleged error in their appeal from that final judgment. Filing a petition for certiorari against the denial is considered improper unless there is an instance of oppressive judicial discretion.
Waiver of Right to Present Evidence
A significant consequence of filing a demurrer to evidence is the potential waiver of the defendant's right to present their own evidence. If the demurrer is granted by the trial court but subsequently reversed on appeal, the defendant is deemed to have waived their right to present evidence and the appellate court will render judgment based solely on the evidence presented by the plaintiff.
Distinction from Other Motions to Dismiss
A demurrer to evidence is distinct from motions to dismiss filed earlier in the proceedings. For instance, a motion to dismiss for failure to state a cause of action is based on the allegations contained within the complaint, whereas a demurrer to evidence is based on the insufficiency of the evidence actually presented by the plaintiff during trial. Similarly, a motion to dismiss filed before or during the plaintiff's presentation of evidence, even if based on alleged lack of jurisdiction or failure to state a cause of action, is considered a motion to dismiss under other rules, not a demurrer to evidence under Rule 33, which applies after the plaintiff rests their case.