Demurrer

Demurrer in the United States

Contents:

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.

See Also

Direct Verdict (Civil Process) Dissmiss (Civil Process).

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

  1. 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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Legal Issue for Attorneys

(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 by 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

See Also

  • Legal Topics.
  • Further Reading (Articles)

    Document: City of Hercules vs. Nelson Oliva, NEO Consulting Inc. et Al. — Demurrer Overruled, Oakland Tribune; November 16, 2012; Lochner, Tom

    Verdicts & Settlements Dec. 26, 2005: Conspiracy Claims Dismissed on Demurrer, Lawyers USA; December 26, 2005; Usa, Lawyes;

    California Unfair Competition Claims Not Amenable To Demurrer, And Not Precluded By Compliance With FDA Regulations., Mondaq Business Briefing; June 24, 2008

    Document: Whittier demurrer regarding anti-drilling lawsuit, Whittier Daily News; February 16, 2012

    CPLR 3211(a)(7): Demurrer or Merits-Testing Device?, Albany Law Review; September 22, 2009; Higgitt, John R.

    demurrer, Webster’s NewWorld Dictionary; January 1, 1988

    Failure to Separately Notice Consideration of CEQA Document Violates Brown Act, Mondaq Business Briefing; June 24, 2013

    Derry lawyers file motion to dismiss felony charges, Redlands Daily Facts; June 9, 2011; MIKE CRUZ

    ‘Fraud’ & ‘Concealment’ Are Exceptions to the Statute of Limitations, Nursing Law’s Regan Report; November 1, 2012

    Superior Court Makes Series of Rulings in Lawsuit Challenging Metropolitan Rate Structure, Ecology, Environment & Conservation; January 20, 2012

    Virginia Supreme Court Reverses Dismissal of Non-Compete Case, Emphasizing Need for Case-by-Case Analysis, Mondaq Business Briefing; September 26, 2013; Flaherty, Thoma

    Virginia Circuit Court Case Summaries: January 2, 2014, The Daily Record (Baltimore); January 2, 2014; Maniscalco, Stephanie

    Why summary judgment is still unconstitutional: a reply to Professors Brunet and Nelson.(response to articles in this issue, p. 1625, 1653), Iowa Law Review; July 1, 2008; Thomas, Suja A.

    Arraignment Delayed for 4 Irwindale Officials Suspected of Embezzlement, Conflict of Interest, Pasadena Star-News; February 28, 2014; Poulisse, Adam

    1st ARMM Governor, Another Official Cleared of Malverse Charges, Manila Bulletin; March 15, 2007

    Urethra Punctured during Hysterectomy: Suit Filed after Limitations, Hospital Law’s Regan Report; July 1, 2012;

    Albany Camper Gets Temporary Reprieve on Ban from Bulb, Oakland Tribune; June 27, 2014; Esper, Damin

    California Courts of Appeal Follow Wigod in Rejecting Challenges to HAMP-Based Contract and Fraud Causes of Action at the Pleading Stage of Litigation, Mondaq Business Briefing; November 14, 2013; Rakowski, Kevin

    SC Oks Dismissal of Dante Tan Charges in BW Resources Case, Manila Bulletin; August 1, 2010

    Court Frees Michael Ray Aquino, Manila Bulletin; December 19, 2012

    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: Open and Free Legal Research of US Law

    Federal Primary Materials

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