{"id":9159,"date":"2017-11-22T20:36:42","date_gmt":"2017-11-22T20:36:42","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=9159"},"modified":"2017-11-24T07:11:54","modified_gmt":"2017-11-24T07:11:54","slug":"demurrer","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=9159","title":{"rendered":"Demurrer – a pleading stating that although the facts alleged in a complaint may be true, they’re insufficient for the plaintiff to state a claim for relief or for the defendant to have to frame an answer"},"content":{"rendered":"

demurrer<\/span>:
\n[de mer\u00a0\u2022 er]
\n<\/span><\/span><\/strong>[French demorer<\/em> ‘to wait or stay’]<\/span><\/p>\n

1. A pleading<\/a> 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.\u00a0 In most jurisdictions, such a pleading<\/a> is now termed a motion to dismiss<\/a>, but demurrer is still used in a few states, including California, Nebraska, & Pennsylvania.\u00a0<\/span><\/strong>[1]<\/span><\/p>\n

1. A method of raising an objection to the legal sufficiency of a pleading<\/a>.\u00a0 A demurrer says, in effect,\u00a0<\/span>that the opposing party\u2019s complaint alleges facts that, even if true, do not\u00a0<\/span>add up to a cause of action and that, therefore, the case should be dismissed.\u00a0 Demurrers have been replaced in many, but not all, jurisdictions by motions\u00a0<\/span><\/strong>or answers, which perform the same function.\u00a0<\/strong> See motion for judgment on the pleadings<\/em><\/a><\/strong>; summary judgment<\/em>.\u00a0 See also general demurrer<\/em>; speaking demurrer<\/em>; special demurrer<\/em>. [2]<\/span><\/p>\n

1. A method of raising an objection to the sufficiency in law of a pleading.\u00a0 27 Am J2d Eq \u00a7 299; 41 Am J1st Pl \u00a7 204<\/span>.<\/strong>
\n\u00a0 \u00a0 \u00a0While demurrers are abolished in many jurisdictions<\/a> 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.\u00a0 41 Am J1st Pl \u00a7 204<\/span>.<\/strong> [3]<\/span><\/p>\n

\n
\n
\n

\u00a0 \u00a0 Excerpt from Edwin E. Bryant\u2019s The Law of Pleading Under the Codes of Civil Procedure<\/a><\/em>:<\/strong><\/span><\/p>\n<\/div>\n<\/div>\n<\/div>\n

\u00a0 \u00a0 \u00a0\u201cThe 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.\u00a0 Each party may demur to what he deems an insufficient pleading of the other.\u00a0 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.<\/span>\u201d<\/strong> [4]<\/span><\/p>\n

demurrant<\/span>:<\/strong><\/span><\/p>\n

1. A party to an action who interposes a demurrer to a pleading<\/a> of an adverse party.\u00a0<\/span><\/strong>[3]<\/span><\/p>\n

Types of Demurrers:<\/span><\/strong><\/p>\n

Demurrer ore tenus<\/em><\/span><\/a> – presented orally rather than as a written pleadings, often to point out a defect in the opponent’s case as grounds for a dismissal.<\/span><\/strong><\/p>\n

\n

General Demurrer<\/span><\/a> – an objection pointing out a substantive defect in an opponent’s pleading (i.e. “lack of subject-matter jurisdiction”).<\/span><\/strong><\/p>\n

Speaking Demurrer<\/span><\/a> – cannot be sustained because it introduces new facts not contained in the complaint.<\/span><\/strong><\/p>\n

Special Demurrer<\/span><\/a> – states grounds for an objection<\/a> and specifically identifies the nature of the defect (i.e. the pleading<\/a> is defective in form<\/a> and thus violates the rules of pleading<\/a> or it violates practice<\/a>).<\/span><\/strong><\/p>\n

Demurrer to Evidence<\/span><\/a> – 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<\/a>).<\/span><\/strong><\/p>\n

Demurrer to Interrogatory<\/span><\/a> – when a witness refuses to answer a question, giving a reason for her refusal, she “demurs to the interrogatory.”<\/span><\/strong><\/p>\n

Demurrer Book<\/span><\/a> –<\/span><\/strong>\u00a0a record of the\u00a0pleadings<\/a> in an action which lead up to an\u00a0issue of law<\/a>; used by the court and counsel <\/span><\/strong>(legal advisor(s))\u00a0<\/em><\/span>in formulating their argument regarding how they came to their determination on that issue<\/a>.<\/span><\/strong><\/p>\n

parol demurrer<\/span>:<\/strong><\/span>
\n(18c)<\/span><\/p>\n

1.<\/strong> Hist<\/em>. A suspension of proceedings during the minority of an infant.<\/strong><\/span><\/p>\n

\n

demurrer to form<\/span>:<\/strong><\/span><\/p>\n

1. A special objection to a pleading on grounds of form rather than substance. 41 Am\u00a0<\/span><\/span>J1st Pl \u00a7 206<\/span>.<\/span><\/strong><\/p>\n

demurrer to indictment<\/span>:<\/strong><\/span><\/p>\n

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\u00a0<\/span>with the clearness and precision required in an indictment. 27 Am J1st Indict \u00a7 144<\/span>.<\/span><\/strong><\/p>\n

demurrer to plea<\/span>:<\/span><\/strong><\/p>\n

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\u2019s own pleadings, and all the facts and attendant circumstances revealed in all the pleadings must be taken into consideration in determining the demurrer.\u00a0 41 Am J1st Pl \u00a7 234<\/span>. <\/span><\/strong><\/p>\n

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 \u00a7465<\/span>.<\/span><\/strong><\/p>\n

demurrer to plea in abatement<\/span>:<\/span><\/strong><\/p>\n

1. A method by which the plaintiff tests the legal sufficiency of the defendant\u2019s plea in abatement. 41 Am J1st Pl \u00a7 211<\/span>.<\/span><\/strong><\/p>\n

demurrer to substance<\/span>:<\/span><\/strong><\/p>\n

1. A demurrer testing the sufficiency<\/span>\u00a0of a pleading in respect of a matter of substance. 41 Am J1st Pl \u00a7 211<\/span>.<\/span><\/strong><\/p>\n

demurrer to the jurisdiction<\/span>:<\/span><\/strong><\/p>\n

1. A demurrer to plaintiff\u2019s pleading which raises the objection of a want of jurisdiction over the person of the defendant or\u00a0<\/span>the subject matter of the suit apparent on the face of the pleading. 41 Am J1st Pl \u00a7 213<\/span>.<\/span><\/strong><\/p>\n

demurrer to the person<\/span>:<\/strong><\/span><\/p>\n

1. A demurrer raising the question of the competency of the plaintiff to maintain\u00a0<\/span><\/strong>the suit. 39 Am J1st Parties \u00a7 105<\/span>.<\/strong> [1]<\/span><\/p>\n<\/div>\n

References:<\/span><\/strong><\/span><\/p>\n

Disclaimer:<\/span><\/span><\/strong> All material throughout this website is pertinent to people everywhere, and is being utilized in accordance with Fair Use<\/a>.<\/span><\/strong><\/p>\n

[1]:\u00a0\u00a0Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner<\/a>. ISBN: 978-0-314-62130-6<\/span><\/span><\/strong><\/p>\n

[2]:\u00a0Ballantine’s Law Dictionary <\/a>Legal Assistant Edition<\/a>\u00a0<\/em>by Jack Ballantine\u00a0(James Arthur 1871-1949).\u00a0\u00a0<\/em>Doctored<\/a>\u00a0<\/em>by\u00a0Jack G. Handler,\u00a0J.D.<\/a>\u00a0\u00a9 1994 Delmar by Thomson Learning.\u00a0 ISBN 0-8273-4874-6.<\/span><\/strong><\/p>\n

[3]<\/span>:<\/span><\/strong>\u00a0Ballantine\u2019s Law Dictionary\u00a0with Pronunciations
\n<\/em>Third Edition<\/a>\u00a0by James A. Ballantine\u00a0(James Arthur 1871-1949).\u00a0\u00a0<\/em>Edited by William S. Anderson.\u00a0\u00a0\u00a9 1969 by THE LAWYER\u2019S CO-OPERATIVE PUBLISHING COMPANY.\u00a0 Library of Congress Catalog Card No. 68-30931<\/span><\/strong><\/p>\n

[4]:\u00a0Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure<\/em> <\/a>15 (2nd ed. 1899)<\/span><\/strong><\/p>\n

 <\/p>\n

******************************************<\/span><\/p>\n

Back to <\/span><\/span><\/strong>Essential Terminology<\/a><\/span><\/span><\/strong><\/p>\n

Intro to U.S. Law<\/span><\/a><\/strong><\/p>\n

Legal Precepts Adopted (from Europe) into The U.S. Constitution<\/span><\/a><\/strong><\/p>\n

\u00a7 <\/span><\/strong>\u00a7<\/span><\/span><\/strong> of Law Embedded into the Constitution Pursuant to the American Revolution<\/span><\/strong><\/a><\/p>\n

Indian Country Law<\/span><\/a><\/strong><\/p>\n

Federal Rules of Procedure<\/span><\/a><\/strong><\/p>\n

Like this website?<\/span><\/span><\/strong><\/p>\n

Please Support Our Fundraiser<\/span><\/a><\/strong><\/p>\n

or donate via\u00a0PayPal<\/a>:<\/span><\/span><\/strong><\/p>\n