{"id":9344,"date":"2017-11-24T06:50:37","date_gmt":"2017-11-24T06:50:37","guid":{"rendered":"https:\/\/reunitethestates.org\/?page_id=9344"},"modified":"2017-11-24T06:58:14","modified_gmt":"2017-11-24T06:58:14","slug":"demurrer-ore-tenus-presented-orally-and-recorded-by-the-clerks","status":"publish","type":"page","link":"https:\/\/reunitethestates.org\/?page_id=9344","title":{"rendered":"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"},"content":{"rendered":"

demurrer ore tenus<\/em><\/span>:<\/span><\/strong>
\nn.\u00a0<\/em>(1838)<\/span><\/p>\n

1. A demurrer made orally at the time of argument in support of a demurrer of record, pointing out the defect in the pleading to which it is addressed.\u00a0 Wetherell v Eberle<\/em>, 123 Ill 666, 14 NE 675<\/span>. <\/span><\/strong><\/p>\n

1. A demurrer in the form of an objection to evidence<\/a> on the ground that the complaint, declaration, or petition fails to state\u00a0<\/span>a cause of action. Cleveland v Bateman<\/em>, 21 NM 675, 158 P 648<\/span>.<\/span><\/strong> [1]<\/span><\/p>\n

1. An oral demurrer.<\/strong> See ORE TENUS<\/em>.<\/span><\/p>\n

\n
\n
\n

ore tenus<\/span>:<\/strong><\/span>
\nadv<\/em>. & adj<\/em>,<\/span>
\n[Latin “by word of mouth\u201d]<\/span>
\n(17c)<\/span><\/p>\n

l. Orally; by word of mouth: VIVA VOCE<\/strong> <pleading carried on ore tenus>. <\/strong>[2]<\/span><\/p>\n

\u00a0 \u00a0 \u00a0Excerpt from\u00a0William Blackstone’s\u00a0Commentaries on the Laws of England<\/em><\/a>\u00a0(1768):<\/span><\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201cPleadings are the mutual altercations between the plaintiff and defendant; which at present are set down and delivered into the proper office in writing, though formerly they were usually put in by their counsel ore tenus<\/em>, or viva<\/em> voce<\/em> in court, and then minuted down by the chief clerks, or prothonotaries<\/span>; whence in our old law French the <\/span><\/strong>pleadings are frequently denominated the parol<\/em>.<\/span>\u201d<\/strong> [3]<\/span><\/span><\/p>\n

prothonotary<\/span>:<\/span><\/strong>
\n(pro-thon\u2019o-ta-ri)<\/span><\/p>\n

1. A clerk of court, <\/span>particularly a chief or principal clerk.\u00a0 A ministerial officer of the court, having the custody of its records\u00a0<\/span><\/strong>and seals, with power to certify to the correctness of transcripts from such records, and possessing authority to perform certain acts of a judicial nature incidental to his ministerial duties.<\/strong> [1]<\/span><\/p>\n

ore tenus<\/span>:<\/span><\/strong>
\n(second definition)<\/span><\/em><\/p>\n

\n

2. Made or presented orally<\/strong> <ore tenus<\/em> evidence>.<\/strong><\/span>\u00a0[2]<\/span><\/p>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n

\u00a0 \u00a0 \u00a0Excerpt from Edwin E. Bryant’s\u00a0The Law of Pleading Under the Codes of Civil Procedure<\/em><\/a>\u00a0(2d ed. 1899):<\/span><\/strong><\/span><\/p>\n

\u00a0 \u00a0 \u00a0\u201cThe codes either expressly or by implication require all pleadings to be in writing.\u00a0 To this proposition there is the apparent exception that objections to the jurisdiction of the court, or to the sufficiency of a pleading, that it does not state a cause of action or defence, may be raised on the trial by what is sometimes called a demurrer ore tenus<\/em> (that is, orally, \u2014 by word of mouth).<\/span>\u201d<\/strong> [4]<\/span><\/p>\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\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

[2]:\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

[3]:\u00a03 William Blackstone, Commentaries on the Laws of England<\/em><\/a> 293 (1768).\u00a0<\/span><\/strong><\/span><\/p>\n

[4]:<\/span><\/strong>\u00a0Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure<\/em> <\/a>179 (2nd ed. 1899)<\/span><\/strong><\/p>\n

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