demurrer:
[de mer • er]
[French demorer ‘to wait or stay’]
1. A pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the plaintiff to state a claim for relief and for the defendant to frame an answer. In most jurisdictions, such a pleading is now termed a motion to dismiss, but demurrer is still used in a few states, including California, Nebraska, & Pennsylvania. [1]
1. A method of raising an objection to the legal sufficiency of a pleading. A demurrer says, in effect, that the opposing party’s complaint alleges facts that, even if true, do not add up to a cause of action and that, therefore, the case should be dismissed. Demurrers have been replaced in many, but not all, jurisdictions by motions or answers, which perform the same function. See motion for judgment on the pleadings; summary judgment. See also general demurrer; speaking demurrer; special demurrer. [2]
1. A method of raising an objection to the sufficiency in law of a pleading. 27 Am J2d Eq § 299; 41 Am J1st Pl § 204.
While demurrers are abolished in many jurisdictions by statute, the abolition is superficial, hung essentially one of terminology, the office of the demurrer being performed under the new and simplified systems of pleading by motion or answer. 41 Am J1st Pl § 204. [3]
Excerpt from Edwin E. Bryant’s The Law of Pleading Under the Codes of Civil Procedure:
“The word ‘demurrer’… imports that the party demurring waits or stays in his proceedings in the action until the judgment of the court is given whether he is bound to answer to so insufficient a pleading. Each party may demur to what he deems an insufficient pleading of the other. The demurrer was general when it was to matter of substance; it was special when it was made to matter of form, & must specifically point out the defect.” [4]
demurrant:
1. A party to an action who interposes a demurrer to a pleading of an adverse party. [3]
Types of Demurrers:
Demurrer ore tenus – presented orally rather than as a written pleadings, often to point out a defect in the opponent’s case as grounds for a dismissal.
General Demurrer – an objection pointing out a substantive defect in an opponent’s pleading (i.e. “lack of subject-matter jurisdiction”).
Speaking Demurrer – cannot be sustained because it introduces new facts not contained in the complaint.
Special Demurrer – states grounds for an objection and specifically identifies the nature of the defect (i.e. the pleading is defective in form and thus violates the rules of pleading or it violates practice).
Demurrer to Evidence – an admission that although the evidence is true, but argues that such facts do not, in law, establish a right to recover (replaced by Motion for Directed Verdict).
Demurrer to Interrogatory – when a witness refuses to answer a question, giving a reason for her refusal, she “demurs to the interrogatory.”
Demurrer Book – a record of the pleadings in an action which lead up to an issue of law; used by the court and counsel (legal advisor(s)) in formulating their argument regarding how they came to their determination on that issue.
parol demurrer:
(18c)
1. Hist. A suspension of proceedings during the minority of an infant.
demurrer to form:
1. A special objection to a pleading on grounds of form rather than substance. 41 Am J1st Pl § 206.
demurrer to indictment:
1. A pleading attacking the sufficiency of an indictment for a defect which appears on the face of the indictment, the failure to state an offense, or the failure to state an offense with the clearness and precision required in an indictment. 27 Am J1st Indict § 144.
demurrer to plea:
1. A method by which the plaintiff tests the sufficiency of the answer or plea of the defendant; such a demurrer calls into question the sufficiency in law of the plaintiff’s own pleadings, and all the facts and attendant circumstances revealed in all the pleadings must be taken into consideration in determining the demurrer. 41 Am J1st Pl § 234.
2. A method of objecting to the sufficiency in law of a special plea by the defendant in a criminal case. 21 Am 12d Crim L §465.
demurrer to plea in abatement:
1. A method by which the plaintiff tests the legal sufficiency of the defendant’s plea in abatement. 41 Am J1st Pl § 211.
demurrer to substance:
1. A demurrer testing the sufficiency of a pleading in respect of a matter of substance. 41 Am J1st Pl § 211.
demurrer to the jurisdiction:
1. A demurrer to plaintiff’s pleading which raises the objection of a want of jurisdiction over the person of the defendant or the subject matter of the suit apparent on the face of the pleading. 41 Am J1st Pl § 213.
demurrer to the person:
1. A demurrer raising the question of the competency of the plaintiff to maintain the suit. 39 Am J1st Parties § 105. [1]
References:
Disclaimer: All material throughout this website is pertinent to people everywhere, and is being utilized in accordance with Fair Use.
[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6
[2]: Ballantine’s Law Dictionary Legal Assistant Edition by Jack Ballantine (James Arthur 1871-1949). Doctored by Jack G. Handler, J.D. © 1994 Delmar by Thomson Learning. ISBN 0-8273-4874-6.
[3]: Ballantine’s Law Dictionary with Pronunciations
Third Edition by James A. Ballantine (James Arthur 1871-1949). Edited by William S. Anderson. © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY. Library of Congress Catalog Card No. 68-30931
[4]: Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 15 (2nd ed. 1899)
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