demurrer

An allegation of a defendant, which, admitting the matters of fact alleged by complaint or bill (equity action) 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 complaint or 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. The formal mode of disputing the sufficiency in law of the pleading of the other side. In effect it is an allegation that, even if the facts as stated in the pleading to which objection is taken be true, yet their legal consequences are not such as to put the demurring party to the necessity of answering them or proceeding further with the cause. An assertion that complaint does not set forth a cause of action upon which relief can be granted, and it admits, for purpose of testing sufficiency of complaint, all properly pleaded facts, but not conclusions of law. Balsbaugh v. Rowland, 447 Pa. 423, 290 A.2d 85, 87.

A legal objection to the sufficiency of a pleading, attacking what appears on the face of the document. People v. Hale, 232 Cal.App.2d 112, 42 Cal.Rptr. 533, 538.

See Calif. Code of Civil Proc. No. 430.10.

See also demurrer to evidence.

By Federal Rules of Civil Procedure (adopted in whole or part in most states) demurrers, pleas and exceptions for insufficiency of a pleading are abolished. Rule 7(c). Every defense in law shall be made by motion or by answer; motions going to jurisdiction, venue, process, or failure to state a claim are to be disposed of before trial, unless the court orders otherwise. While the Federal Rules do not provide for the use of a demurrer, an equivalent to a general demurrer is provided in the motion to dismiss for failure to state a claim on which relief may be granted. Fed.R. Civil P. 12(b). Objections to the pleadings by means of demurrer still exists however in certain states; see e.g. Calif. Code of Civil Proc. No. 430.10 et seq.

Classification of Demurrers

@ general demurrer

A general demurrer is a demurrer framed in general terms, without showing specifically the nature of the objection, and which is usually resorted to where the objection is to matter of substance. Thus, a demurrer on the ground that the complaint sets forth no cause of action is a general demurrer (see e.g. Calif. Code of Civil Proc. No. 430.10(e)), and a motion to dismiss a bill on ground that there is no equity apparent on the face thereof or that court has no jurisdiction is treated as a general demurrer.

A general demurrer to an indictment challenges only matters of form and substance appearing on its face. It is one which raises an objection that averments are insufficient in law to support the action or defense without specifying any particular cause or defect, and is sufficient only to reach matters of substance. The Federal Rules equivalent to a general demurrer is a motion to dismiss for failure to state a claim on which relief may be granted. Fed.R. Civil P. 12(b).

@ special demurrer

A special demurrer goes merely to structure or form of pleading which it attacks, and usually only to some portion thereof, and must distinctly specify wherein defect lies. Cameron v. Evans Securities Corp., 119 Cal.App. 164, 6 P.2d 272, 274.

It is one which excepts to the sufficiency of the pleadings on the opposite side, and shows specifically the nature of the objection, and the particular ground of the exception. Johanson v. Cudahy Packing Co., 107 Utah 114, 152 P.2d 98, 105.

See e.g. Calif. Code of Civil Proc. No.No. 430.50, 430.60.

The Federal Rules analogue of the special demurrer is the motion to make more definite and certain. Fed.R. Civil P. 12(e).

@ speaking demurrer

A speaking demurrer is one which, in order to sustain itself, requires the aid of a fact not appearing on the face of the pleading objected to, or, in other words, which alleges or assumes the existence of a fact not already pleaded, and which constitutes the ground of objection and is condemned both by the common law and the code system of pleading. Preston A. Blair Co. v. Rose, 56 Idaho 114, 51 P.2d 209, 212.

A speaking demurrer is one which alleges some new matter, not disclosed by the pleading against which the demurrer is aimed and not judicially known or legally presumed to be true.

+ speaking demurrer

A demurrer which introduces a new fact that does not appear from face of bill or complaint is a "speaking demurrer," and cannot be sustained. Allpress v. Lawyers Title Ins. Corp., 218 Tenn. 673, 405 S.W.2d 572, 573.

A speaking demurrer is a special exception which, instead of limiting itself to the allegations of the petition and pointing out defects therein, states factual propositions not appearing in the petition and, in reliance upon such facts, seeks to challenge the plaintiffs right to recovery. Ragsdale v. Ragsdale, Tex.av.App., 520 S.W.2d 839, 842.

See also demurrer

@ parol demurrer

A parol demurrer (not properly a demurrer at all) was a staying of the pleadings; a suspension of the proceedings in an action during the nonage of an infant, especially in a real action. Now abolished. 3 Bl.Comm. 300

@ demurrer book

A record of the issue on a demurrer at law, containing a transcript of the pleadings, with proper entries; and intended for the use of the court and counsel on the argument

@ demurrer ore tenus

An objection to the introduction of any evidence on the ground that the complaint or petition fails to state a cause of action. Peerless Fixture Co. v. Frick, Mo.App., 133 S.W.2d 1089, 1090.

This name is sometimes given to a ruling on an objection to evidence, but is not properly a demurrer at all. It should be considered as a general demurrer only

@ demurrer to evidence

This proceeding is analogous to a demurrer to a pleading. It is an objection or exception by one of the parties in an action at law, to the effect that the evidence which his adversary produced is insufficient in point of law (whether true or not) to make out his case or sustain the issue.

The practice has been largely superseded by motions for nonsuit and directed verdict. Thus, a motion to nonsuit, a motion to dismiss at close of plaintiffs evidence for failure to prove essential facts, and a defendant's motion for a directed verdict, made at close of the evidence, have been held to be equivalent to a "demurrer to the evidence" for insufficiency to sustain a verdict for plaintiff. A motion to exclude evidence has the effect of a demurrer to the evidence, the chief points of difference being the stage of the proceeding at which each is available and the consequences resulting from deferring the motion to exclude. Thornhill v. Thornhill, 172 Va. 553, 2 S.E.2d 318, 319

@ demurrer to interrogatories

Where a witness objects to a question propounded (particularly on the taking of a deposition) and states his reason for objecting or refusing to answer, it is called a "demurrer to the interrogatory," though the term cannot here be understood as used in its technical sense

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