Demurrer in the United States

A way of challenging the legal sufficiency of the other party’s case. A demurrer is a formal contention by a party to a lawsuit that asserts that even if the other side’s representation of the facts is accurate, it is legally insufficient to sustain the case. When a person demurs, he or she does not legally admit the other party’s position is right. Rather, the challenge focuses on whether there is a legal remedy that can be provided if the other side’s fact position is true.

Analysis and Relevance

A demurrer is used to dispute the legal adequacy of a pleading or other evidence offered by the opposing party. The demurrer allows a defendant to assert that the effect of an argument or unit of evidence, whether true or not, is insufficient to prevail if the case is tried. Presentation of a demurrer has been largely replaced in contemporary practice by motions to dismiss or motions for directed verdicts.

Notes and References

Definition of Demurrer from the American Law Dictionary, 1991, California

Demurrer Definition

(Lat. demorari; old Fr. demorrer, to stay; to abide). In Pleading at Law. An allegation that, admitting the facts of the preceding pleading to be true as stated by the party making it, he has yet shown no cause why the party demurring should be compelled by the court to proceed further. A declaration that the party demurring will go no further, because the other has shown nothing against him. 5 Mod. 232; Co. Litt. 71b. It imports that the objecting party will not proceed, but will wait the judgment of the court whether he is bound so to do. Co. Litt. 71b; Steph. PL 61. A general demurrer is one which excepts to the sufficiency of a previous pleading in general terms; such a demurrer being sufficient if the objection is to matters of substance. Steph. PI. 159. A special demurrer is one which shows specifically the nature of the objection, and the ground of exception. Co. Litt. 72a. In Equity Pleading. An allegation of a defendant, which, admitting the matters of fact alleged by the bill to be true, shows that as they are therein set forth they are insufficient for the plaintiff to proceed upon or to oblige the defendant to answer; or, that, for some reason apparent on the face of the bill, or on account of the omission of some matter which ought to be contained therein, or for want of some circumstances which ought to be attendant thereon, the defendant ought not to be compelled to answer to the whole bill, or to some certain part thereof. Mitf. Eq. PI. (Jeremy Ed.) 107. Demurrers are general, where no particular cause is assigned except the usual formulary that there is no equity in the bill; or special, where the particular defects are pointed out. Story, Eq. PI. § 455. General demurrers are used to point out defects of substance ; special, to point out defects in form. In many states, the grounds of demurrer and the requisites of a demurrer are regulated by statute. Thus, in Minnesota a complaint may be demurred to for (1) absence of jurisdiction; (2) lack of legal capacity in plaintiff to sue; (3) another action pending; (4) defect of parties; (5) misjoinder of causes of action; (6) failure to state facts sufficient to constitute a cause of action. The demurrer must distinctly specify the ground of objection as being one of those enumerated by Gen. St. Minn. 1878, c. 66, §§ 92, 93. In Practice. Demurrer to evidence is a declaration that the party making it will not proceed, because the evidence offered on the other side is not sufficient to maintain the issue. 28 Ala. (N. S.) 637. Upon joinder by the opposite party, the jury is generally discharged from giving any verdict (1 Archb. Prac. 186) ; and the demurrer, being entered on record, is afterwards argued and decided by the court in banc; and the judgment there given upon it may

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(Lat. demorari; old Fr. demorrer, to stay; to abide). In Pleading at Law. An allegation that, admitting the facts of the preceding pleading to be true as stated by the party making it, he has yet shown no cause why the party demurring should be compelled by the court to proceed further. A declaration that the party demurring will go no further, because the other has shown nothing against him. 5 Mod. 232; Co. Litt. 71b. It imports that the objecting party will not proceed, but will wait the judgment of the court whether he is bound so to do. Co. Litt. 71b; Steph. PL 61. A general demurrer is one which excepts to the sufficiency of a previous pleading in general terms; such a demurrer being sufficient if the objection is to matters of substance. Steph. PI. 159. A special demurrer is one which shows specifically the nature of the objection, and the ground of exception. Co. Litt. 72a. In Equity Pleading. An allegation of a defendant, which, admitting the matters of fact alleged by the bill to be true, shows that as they are therein set forth they are insufficient for the plaintiff to proceed upon or to oblige the defendant to answer; or, that, for some reason apparent on the face of the bill, or on account of the omission of some matter which ought to be contained therein, or for want of some circumstances which ought to be attendant thereon, the defendant ought not to be compelled to answer to the whole bill, or to some certain part thereof. Mitf. Eq. PI. (Jeremy Ed.) 107. Demurrers are general, where no particular cause is assigned except the usual formulary that there is no equity in the bill; or special, where the particular defects are pointed out. Story, Eq. PI. § 455. General demurrers are used to point out defects of substance ; special, to point out defects in form. In many states, the grounds of demurrer and the requisites of a demurrer are regulated by statute. Thus, in Minnesota a complaint may be demurred to for (1) absence of jurisdiction; (2) lack of legal capacity in plaintiff to sue; (3) another action pending; (4) defect of parties; (5) misjoinder of causes of action; (6) failure to state facts sufficient to constitute a cause of action. The demurrer must distinctly specify the ground of objection as being one of those enumerated by Gen. St. Minn. 1878, c. 66, §§ 92, 93. In Practice. Demurrer to evidence is a declaration that the party making it will not proceed, because the evidence offered on the other side is not sufficient to maintain the issue. 28 Ala. (N. S.) 637. Upon joinder by the opposite party, the jury is generally discharged from giving any verdict (1 Archb. Prac. 186) ; and the demurrer, being entered on record, is afterwards argued and decided by the court in banc; and the judgment there given upon it may

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Notice

This definition of Demurrer Is based on the The Cyclopedic Law Dictionary . This definition needs to be proofread..

Practical Information

Note: Some of this information was last updated in 1982

A pleading that raises an issue of law, not of fact. It objects to defects that are apparent from the pleading itself. Insteady of denying facts alleged in the complaint (in U.S. law) , as an answer (in U.S. law) does, a demurrer to a complaint takes exception to the complaint because it is insufficient on some legal ground. In effect, the demurrer declares that even if everything stated in the complaint were true, it does not state facts sufficient to constitute a cause of action (in U.S. law). For example, a defendant may demur to a complaint on the ground that the plaintiff does not have legal capacity to sue. The defendant may also demur to the plaintiffs reply. But a demurrer is not a pleading to be used b
y the defendant only. A plaintiff may demur to the defendant’s answer, or to a cross complaint. Each cause of action (count), or each defense, is demurred to separately. Many states have abolished demurrers, but they are still permitted as a pleading in some states. Under the Federal Rules of Civil Procedure, the demurrer is replaced by a motion to dismiss. If the motion to dismiss is denied, the case simply goes to trial on the merits. A demurrer consists of the following parts: 1. Caption

2. Introduction

3. Grounds of demurrer, each stated separately

4. Signature of attorney

5. Attorney’s certificate of good faith when required

6. Points and authorities

The statutes name the grounds for demurrer. These grounds usually include, among others, the following: (1) that the court has no jurisdiction; (2) that the plaintiff has no legal capacity to sue; (3) that the complaint (or answer) is ambiguous, unintelligible, uncertain. A demurrer is supported by legal points and authorities sustaining the grounds of demurrer.

How to prepare the demurrer

The statement of a specific ground for demurrer usually follows a standard form,

(Revised by Ann De Vries)

What is Demurrer?

For a meaning of it, read Demurrer in the Legal Dictionary here. Browse and search more U.S. and international free legal definitions and legal terms related to Demurrer.

Resources

Demurrer in the Context of Law Research

The Thurgood Marshall School of Law Library defined briefly Demurrer as: A means of objecting to the sufficiency in law of a pleading by admitting the actual allegations made, but disputing that they frame an adequate legal chain.Legal research resources, including Demurrer, help to identify the law that governs an activity and to find materials that explain that law.

Demurrer