Definition of DEMURRER in Black's Law Dictionary 4th Edition – Legal dictionary – Glossary of legal terms.
Definition of DEMURRER
In Equity
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. Pl. 107. See, also, Goldsmith v. Mead Johnson & Co., 176 Md. 682, 7 A.2d 176, 179.
A general demurrer in equity, as a separate entity from a demurrer on specific grounds, tests the equity of a bill in the same manner as a motion to dismiss for want of equity, and, in considering the bill on such a demurrer, amendable defects are taken as amended. Johnson v. Pugh, 193 So. 317, 239 Ala. 12.
By Federal Rules of Civil Procedure, demurrers, pleas and exceptions for insufficiency of a pleading are abolished; every defence 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.
In Pleading
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. Green v. Carter, 28 Ohio App. 492, 162 N. E. 814, 815; State v. Broad River Power Co., 177 S.C. 240, 181 S.E. 41; Mountain Park Institute v. Lovill, 198 N.C. 642, 153 S.E. 114, 116; State v. California Packing Corporation, 105 Utah 191, 145 P.2d 784.
A "demurrer" is not an absolute admission of any fact but simply admits those facts that are well pleaded. Commonwealth ex rel. Duff v. Keenan, 347 Pa. 574, 33 A.2d 244, 248.
An objection made by one party to his opponent's pleading, alleging that he ought not to answer it, for some defect in law in the pleading. It admits the facts, and refers the law arising thereon to the court. R. L. Davies & Co. v. Blomberg, 185 N.C. 496, 117 S.E. 497.
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.P1. 61; Kramer v. Barth, 139 N.Y.S. 341, 344, 79 Misc. 80.
Classification and Varieties
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. Steph.Pl. 140-142; 1 Chit.Pl. 663. See Maryland Casualty Co. v. Arnold, 51 Ga.App. 562, 180 S.E. 906, 907.
Thus, a demurrer on the grounds that the complaint sets forth no cause of action, is a general demurrer, Alabama Power Co. v. Curry, 228 Ala. 444, 153 So. 634; and a motion to dismiss a bill on ground that there is no equity apparent on the face thereof or that the court has no jurisdiction is treated as a general demurrer. People v. Sterling, 357 Ill. 354, 192 N.E. 229, 231.
A general demurrer to an indictment challenge 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. Mountain Park Institute v. Lovill, 198 N. C. 642, 153 S.E. 114, 116.
A motion to dismiss a complaint for failure to state a claim upon which relief can be granted is equivalent to a general demurrer. Louisiana Farmers' Protective Union v. Great Atlantic & Pacific Tea Co. of America, D.C.Ark., 40 F.Supp. 897, 908.
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. Huff v. Palmer, 356 Ill. 563, 191 N.E. 199, 202; 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. 3 Bouv. Inst. no. 3022. Dairy Regior Land Corporation v. Harding, Tex.Civ.App., 266 S.W. 181, 182; Johanson v. Cudahy Packing Co., 107 Utah 114, 152 P.2d 98, 105.
While general demurrer on specific grounds relating to different allegations of bill may be called "special demurrer," which attacks different parts of bill specifically, such demurrer fails, if bill is good as pleading and remaining allegations are sufficient to support relief prayed. Forcum v. Symmes, 106 Fla. 510, 143 So. 630, 631.
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. Ellis v. Perley, 200 N.C. 403, 157 S.E. 29, 30. Ferris v. Union Sa y . Bank, 45 Ga.App. 544, 165 S.E. 450; Preston A. Blair Co. v. Rose, 56 Idaho 114, 51 P.2d 209, 212; Metropolitan Life Ins. Co. v. Perrin, 184 Miss. 249, 183 So. 917, 920; Town of Randolph v. Lyon, 106 Vt. 495, 175 A. 1, 2; Whaley v. First Nat. Bank, 229 Ala. 153, 155 So. 574.
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. Blythe v. Enslen, 219 Ala. 638, 123 So. 71, 73; Kansas Life Ins. Co. v. First Bank of Truscott, Tex.Civ. App., 47 S.W.2d 675, 677; In re Ferris' Estate, Iowa, 14 N.W.2d 889, 894.
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. In practice. 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. 3 Bl. Comm. 317; 3 Steph. Comm. 581
Demurrer ore tenus. An objection to the introduction of any evidence on the grounds that the complaint or petition fails to state a cause of action. Cleveland v. Bateman, 21 N.M. 675, 158 P. 648, 652, Ann.Cas.1918E, 1011; 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. Mandelert v. Land Co., 104 Wis. 423, 80 N.W. 726; It should be considered as a general demurrer only. Dawkins v. People's Bank & Trust Co., 117 Okl. 181, 245 P. 594, 596.
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. Upon joinder in demurrer, the jury is discharged, and the case is argued to the court in bane, who gives judgment upon the facts as shown in evidence. See 3 Bl. Comm. 372; State v. Moody, 150 N.C. 847, 64 S.E. 431, 432. The practice has been largely superseded by motions for nonsuit and directed verdict. Hopkins v. Nashville, C. & St. L. Ry., 96 Tenn. 409, 34 S.W. 1029, 1034, 32 L.R.A. 354. Thus, a motion to nonsuit, Herrick v. Barzee, 96 Or. 357, 190 P. 141, 145; Perkins v. Maiden, 57 Cal.App.2d 46, 134 P.2d 30, 34, a motion to dismiss at close of plaintiff's evidence for failure to prove essential facts, Mansfield v. Reserve Oil Co., 38 N.M. 187, 29 P.2d 491, 492; Fewkes v. Borah, 376 Ill. 596, 35 N.E.2d 69, 72, have been held to be, and a defendant's motion for a directed verdict, made at close of the evidence, is equivalent to, a "demurrer to the evidence" for insufficiency to sustain a verdict for plaintiff. Mills v. Richardson, 126 Me. 244, 137 A. 689, 690. 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. For a discussion of the subject see Hopkins v. Nashville, C. & St. L. R. R., 96 Tenn. 409, 34 S.W. 1029, 32 L.R.A. 354.
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. 2 Swanst. 194; Gresl. Eq. Ey, 61; 2 Atk. 524; 1 Y. & J. 132.
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That's the definition of DEMURRER in Black's Law Dictionary 4th Edition – Legal dictionary – Glossary of legal terms. Courtesy of Cekhukum.com.
