1. PLEADING AND PRACTICE; DEMURRER TO EVIDENCE; DENIAL OF MOTION TO DISMISS; DEFENDANT ENTITLED TO PRESENT EVIDENCE. — When motion to dismiss is filed after the plaintiff has presented his evidence and closed his case, and the same is denied, the defendant may still be allowed to present his evidence, whether or not he reserved his right to present evidence.

In Civil Case No. 374 of the Court of First Instance of Sorsogon, between Honorata L. Rotaeche, plaintiff, and Damaso Madrid, defendant, the latter, after the former had closed her evidence and rested her case, filed a motion for dismissal, with a reservation of the right to present evidence if denied. The court turned down the motion, but continued the hearing so as to allow the defendant to present his evidence. Subsequently, however, the plaintiff filed a motion insisting that the defendant had already lost his right to adduce any evidence. Over the objection of the defendant, the court sustained the plaintiff’s contention. Unsuccessful in his attempt at reconsideration, the defendant instituted the present original petition for certiorari.

The action of the respondent Judge is erroneous. The proper procedure is plainly stated in Moran, Comments on the Rules of Court, 1952 edition, Vol. I, p. 672, as follows: "However, when the motion to dismiss is denied by the trial court, the rule is different. Whether the motion is made with or without reservation, if denied, the defendant may still be allowed to introduce evidence. 1"

Wherefore, granting the petition for certiorari, the respondent Judge of the Court of First Instance of Sorsogon is hereby ordered to allow the petitioner to present his evidence in Civil Case No. 374. With costs against the respondent Honorata L. Rotaeche.

Feria, Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.

Endnotes:

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1. Guido v. Castelo, 45 Off. Gaz., 5418, and Cotaoco v. Dinglasan, 46 Off. Gaz., Supp. (11), p. 133, are cited.