demurrer

Definition of demurrer

Pronunciation

• \de*mur"rer\,
• Rhymes: -ɜːrə(r)

Noun

demurrer (plural demurrers)

1. someone who demurs or objects
2. (law) A stop or pause by a party to an action, for the judgment of the court on the question, whether, assuming the truth of the matter alleged by the opposite party, it is sufficient in law to sustain the action or defense, and hence whether the party resting is bound to answer or proceed further.

Derived terms

• demurrer to evidence

Anagrams

• Anagrams of deemrrru
• murderer

Further reading

A 'demurrer' is a legal pleading filed by a party defending against claims or defenses in a lawsuit. The demurrer challenges whether a legal cause of action exists for the facts, as stated by the complaining party. This is referred to as challenging the "legal sufficiency" of a claim, cause of action, or defense. A demurrer is typically filed towards the beginning of a case, before the answer.

At common law, a demurrer was the most common pleading by which a defendant would challenge legal sufficiency in criminal or civil cases, but today the pleading is abolished in many jurisdictions, including the federal court system (though many large jurisdictions, including California retain the demurrer). In criminal cases, a demurrer was considered a common law due process right, to be heard and decided before the defendant was required to plead "not guilty", or make any other pleading in response, without having to admit or deny any of the facts alleged.

A demurrer is not a challenge to the ultimate merits of a case or claim. When ruling on a demurrer, a judge is required by law to assume as true facts alleged in the complaint, even if those facts would later be challenged. Historically, however, a party filing a demurrer often had to admit the facts in the complaint and waive the right to later challenge those facts.

England and Wales

In civil law a demurrer as such is no longer available under the current law of England and Wales. However, two similar procedures may be employed where claims without merit need to be expeditiously dismissed.

Firstly, an application on notice can be made for summary judgment in favor of the Defendant. Secondly, the court has power to strike out the Particulars of Claim.

In order to have a non-meritorious claim dismissed, however, the distinction between the two procedures is that when the Particulars of Claim are struck out, the Claimant usually has another opportunity to file an amended Particulars of Claim, within (say) four weeks, whereas Summary Judgment is final (subject to appeal).

In criminal law demurrer is obsolete, although not formally abolished. It has been superseded by the more modern motion to quash, usually a verbal application to the judge to rule the indictment null and void and to stop the case (demurrer was pleaded in writing).

United States

Federal courts

In civil cases in the United States district courts, the demurrer replaced by the Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.

State courts

The demurrer motion can be made by the defendant in most U.S. state court systems. For example, demurrers are still used in California and Virginia state court civil practice. Additionally, when children are removed from their parents and taken into foster care in California, the parents may challenge the sufficiency of the dependency complaint by means of a motion akin to demurrer, which operates similarly to a demurrer. The term preliminary objection is used for a similar procedural device in Pennsylvania state court and governed by Pennsylvania Rule of Civil Procedure 1028(a)(4).

In contrast, however, in Texas and Ohio demurrers are specifically prohibited.