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21.

If denied, the movant shall file his answer within the balance of the reglementary period prescibed by Rule 11to which he was entitled at the time of serving his motion, but not less than five (5) days in any event. 22. o. a defaulted party cannot file a motion to dismiss. !nder "ec. #, Rule $ of the Rules of %ourt, default is the failure of the defendant to answer within the period allowed by the Rules. &oreover, a motion to dismiss is not a pleading and such motion should be filed within the time but prior to the filing of the answer of the defendant. "ince defendant is already declared in default, it necessarily implies that no answer or any responsive pleading was filed within the period prescribed by the Rules and a motion to dismiss is not available after defendant is declared in default. 2#. 'n order denying a motion to dismiss is interlocutory and not appealable. 'n order denying a motion to dismiss does not finally dispose of the case, and in effect, allows the case to proceed until the final ad(udication thereof by the court. 's such, it is merely interlocutory in nature and thus, not appealable. )owever, an order granting a motion to dismiss is a final order which disposes the case, thus, appealable. 2*. a. the failure of the plaintiff to appear during pre+trial shall be a cause for the dismissal of the action. ,his dismissal shall be with pre(udice e-cept when the court orders otherwise. b. the failure of the defendant to appear during pre+trial shall be a cause to allow plaintiff to present evidence e- parte and for the court to render (udgment on the basis of the evidence presented by the plaintiff. 25. ' subpoena Duces Tecum is a process directed to a person re.uiring him to bring with him any boo/s, documents, or things under his control (Sec. 1, Rule 21). 0hereas, subpoena ad testificandum is a process directed to a person re.uiring him to attend and to testify at the hearing or trial of an action or at any investigation conducted by competent authority or for the ta/ing of his deposition (Sec. 1, Rule 21). 21. ,he following are the instances where a deposition of a witness, whether or not a party may be used for any purpose2 a. ,he witness is dead3 b. ,he witness resides more than 144 /ilometers from the place of trial or hearing, or is out of the 5hilippines. !nless it appears that his absences was procurred by the oarty offering the deposition. c. ,he witness is unable to testify because of age, sic/ness, infirmity, or imprisonment3 d. ,he party offering the deposition has been unable to procure the attendance of the witness by subpoena3 or e. !pon application and notice, that such e-ecptional circumstances e-ist as to ma/e it desirable in the interest of (ustice. 26. o. 's 7udge, I will no grant the motion of defendant to present evidence. !nder the Rules of %ourt, demurrer to evidence is a motion to dismiss based on the ground of insufficiency of evidence and is presented after the plaintiff rests his case. If the demurrer is granted but on appeal the order of dismissal is reversed, the defendant is deemed to have waived his right to present evidence (Sec.1, Rule 33). Moreover, the appellate court reversing the order granting the demurrer should not remand the case to the trial court. Instead, it should render (udgment based on the evidence submitted by the plaintiff. (Radiowealth Finance Corporation vs Del Rosario, 335 SCR 2!!)

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