A demurrer is a

pleading In law as practiced in countries that follow the English models, a pleading is a formal written statement of a party's claims or defenses to another party's claims in a civil action. The parties' pleadings in a case define the issues to be adjudi ...

in a

lawsuit - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...

that objects to or challenges a pleading filed by an opposing

party A party is a gathering of people who have been invited by a host for the purposes of socializing, conversation, recreation, or as part of a festival or other commemoration or celebration of a special occasion. A party will often feature f ...

. The word ''demur'' means "to object"; a ''demurrer'' is the document that makes the objection. Lawyers informally define a demurrer as a defendant saying "So what?" to the pleading. Typically, the

defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisdic ...

in a case will demur to the

complaint In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties (the plaintiff(s)) believes are sufficient to support a claim against the party ...

, but it is also possible for the

plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...

to demur to an

answer Answer commonly refers to response to a question. Answer may also refer to: * Answer (law), any reply to a question, counter-statement or defense in a legal procedure Music * Answer, an element of a fugue Albums * ''Answer'' (Angela Aki alb ...

. The demurrer challenges the legal sufficiency of a cause of action in a complaint or of an affirmative defense in an answer. If a

cause of action A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a p ...

in a complaint does not state a cognizable claim or if it does not state all the required elements, then the challenged cause of action or possibly the entire complaint can be thrown out (informally speaking) at the demurrer stage as not legally sufficient. A demurrer is typically filed near the beginning of a case in response to the plaintiff filing a complaint or the defendant answering the complaint. In

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

, a demurrer was the pleading through which a defendant challenged the legal sufficiency of a complaint in

criminal In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...

civil Civil may refer to: *Civic virtue, or civility *Civil action, or lawsuit * Civil affairs *Civil and political rights *Civil disobedience *Civil engineering *Civil (journalism), a platform for independent journalism *Civilian, someone not a membe ...

cases. Today, however, the pleading has been discontinued in many

jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Jur ...

s, including the

United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...

, the U.S. federal court system, and most U.S. states (though some states, including

California California is a U.S. state, state in the Western United States, located along the West Coast of the United States, Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the List of states and territori ...

, Pennsylvania, and

Virginia Virginia, officially the Commonwealth of Virginia, is a state in the Mid-Atlantic and Southeastern regions of the United States, between the Atlantic Coast and the Appalachian Mountains. The geography and climate of the Commonwealth ar ...

, retain it). In criminal cases, a demurrer was considered a

due process Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual pers ...

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 In law, an allegation is a claim of an unproven fact by a party in a pleading, charge, or defense. Until they can be proved, allegations remain merely assertions.

. A demurrer generally ''assumes'' the truth of all material facts alleged in the complaint, and the defendant cannot present evidence to the contrary, even if those facts appear to be obvious fabrications by the plaintiff or are likely to be easily disproved during

litigation - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...

. That is, the point of the demurrer is to test whether a cause of action or affirmative defense ''as pleaded'' is legally insufficient, even if all facts pleaded are assumed to be true. The sole exception to the no-evidence rule is that a court may take

judicial notice Judicial notice is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well-known, or so authoritatively attested, that it cannot reasonably be doubted. This is done upon the ...

of certain things. For example, the court can take judicial notice of commonly known facts not reasonably subject to challenge, such as the

Gregorian calendar The Gregorian calendar is the calendar used in most parts of the world. It was introduced in October 1582 by Pope Gregory XIII as a modification of, and replacement for, the Julian calendar. The principal change was to space leap years dif ...

, or of

public record Public records are documents or pieces of information that are not considered confidential and generally pertain to the conduct of government. For example, in California, when a couple fills out a marriage license application, they have the optio ...

s, such as a published legislative report showing the intent of the legislature in enacting a particular statute.

Overview

Civil cases

A demurrer is commonly filed by a defendant in response to a complaint filed by the

. A demurrer to a complaint can terminate a lawsuit. Although a plaintiff may demur to a defendant's answer to a complaint or the defendant's

affirmative defense An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's o ...

s, a demurrer to an answer is less common because it may be a poor strategic move. A demurrer to an answer may simplify a lawsuit, but it usually will not end the lawsuit; it is normally used only when the plaintiff intends to move for

summary judgment In law, a summary judgment (also judgment as a matter of law or summary disposition) is a judgment entered by a court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes ...

in their favor at the earliest opportunity and needs to preemptively attack some of the defendant's affirmative defenses. Technically, a demurrer is not a ''

motion In physics, motion is the phenomenon in which an object changes its position with respect to time. Motion is mathematically described in terms of displacement, distance, velocity, acceleration, speed and frame of reference to an observer and mea ...

;'' a party does not file a ''motion for demurrer'' nor ''move the court to demur.'' Rather, a demurrer is a particular type of pleading and demurring is the act by which a party formally requests the court to dismiss a

(claim) or the entire complaint. In lay terms, a judge who sustains a demurrer is saying that the law does not recognize a legal claim for the facts stated by the complaining party. If the judge overrules a demurrer, the court is allowing the claim or case to proceed. In legal terms, the demurring party asserts that the complaint or

counterclaim In a court of law, a party's claim is a counterclaim if one party asserts claims in response to the claims of another. In other words, if a plaintiff initiates a lawsuit and a defendant responds to the lawsuit with claims of their own against th ...

does not amount to a legally valid claim, even if the factual allegations contained in the complaint or counterclaim are accepted as true. Usually, a demurrer attacks a complaint as missing one or more required elements of a claim. Those elements are usually attacked by showing that the plaintiff failed to plead an essential element ''per se'' or facts that adequately support it (e.g., facts giving rise to an actionable duty running from the defendant to the plaintiff). Another method is to attack the entire cause of action itself as abolished or prohibited as against public policy (e.g.,

wrongful life Wrongful life is the name given to a cause of action in which someone is sued by a severely disability, disabled child (through the child's legal guardian) for failing to prevent the child's birth. Typically, a child and the child's parents will s ...

is against public policy in most jurisdictions). Demurrers are decided by a judge rather than a

jury A jury is a sworn body of people (jurors) convened to hear evidence and render an impartiality, impartial verdict (a Question of fact, finding of fact on a question) officially submitted to them by a court, or to set a sentence (law), penalty o ...

. The judge either grants the demurrer by sustaining it, or denies it by overruling the demurrer. If the demurrer is overruled, the defendant is ordered to file an answer within a certain period of time or else risk a

default judgment Default judgment is a binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear ...

. Once the answer is filed, then the case is said to be "at issue" (because there are now a complaint and answer on file opposing each other with the parties' respective provisions), and the case proceeds to the

discovery Discovery may refer to: * Discovery (observation), observing or finding something unknown * Discovery (fiction), a character's learning something unknown * Discovery (law), a process in courts of law relating to evidence Discovery, The Discovery ...

stage. In the alternative, a judge may sustain a demurrer

with prejudice Prejudice is a legal term with different meanings, which depend on whether it is used in criminal, civil, or common law. In legal context, "prejudice" differs from the more common use of the word and so the term has specific technical meanings. ...

or without prejudice. With prejudice means the plaintiff cannot file another complaint attempting to fix insufficiencies of the previous complaint. If the demurrer is granted without prejudice and/or with leave to amend, then the plaintiff may correct errors filing a corrected and/or amended complaint. Demurrers sustained with prejudice are reserved for when the judge determines a plaintiff cannot cure or fix the complaint by rewriting or amending it. Depending upon the severity of the defect in a complaint, a court may sustain with prejudice on the first demurrer (very rare) or allow the plaintiff as many as three or four attempts before sustaining a demurrer to a third or fourth amended complaint with prejudice.

Criminal cases

In criminal cases, a demurrer may be used in some circumstances to challenge the legal sufficiency of the

indictment An indictment ( ) is a formal accusation that a legal person, person has committed a crime. In jurisdictions that use the concept of felony, felonies, the most serious criminal offence is a felony; jurisdictions that do not use the felonies concep ...

or other similar charging instrument. Traditionally, if the defendant could admit every allegation of the indictment and still be innocent of any crime, then a ''general demurrer'' would be sustained and the indictment would be dismissed. A ''special demurrer'' refers to an attack on the form, rather than the substance, of the charge: if the defendant correctly identifies some defect "on the face" of the indictment, then the charges are subject to being dismissed, although usually the indictment can be redrawn (rewritten) and re-presented to the

grand jury A grand jury is a jury—a group of citizens—empowered by law to conduct legal proceedings, investigate potential criminal conduct, and determine whether criminal charges should be brought. A grand jury may subpoena physical evidence or a pe ...

or other charging authority. While there are different ways to accomplish the goals of a special demurrer, often an alternative method to challenge the sufficiency of the indictment is an attack on the

prosecution A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal trial ...

's case prior to trial, and is generally made by means of

motion to dismiss In United States law, a motion is a procedural device to bring a limited, contested issue before a court for decision. It is a request to the judge (or judges) to make a decision about the case. Motions may be made at any point in administrativ ...

England and Wales

In civil law a demurrer as such is no longer available under the current

law of England and Wales English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, been ...

. However, two similar procedures may be employed where claims without merit need to be expeditiously dismissed. First, an ''application on notice'' can be made for

in favor of the objecting party. Second, the court has power to strike out the

Particulars of Claim In metaphysics, particulars or individuals are usually contrasted with universals. Universals concern features that can be exemplified by various different particulars. Particulars are often seen as concrete, spatiotemporal entities as opposed to a ...

. 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, for example, four weeks, whereas Summary Judgment is final, though subject to appeal. In criminal law demurrer is obsolete, although not formally abolished. It has been superseded by the more modern ''

motion to quash A motion to quash is a request to a court or other tribunal to render a previous decision or proceeding null or invalid. The exact usage of motions to quash depend on the rules of the particular court or tribunal. In some cases, motions to quash a ...

'', usually a verbal application to the judge to rule the

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 court The United States district courts are the trial courts of the United States federal judiciary, U.S. federal judiciary. There is one district court for each United States federal judicial district, federal judicial district, which each cover o ...

s, the demurrer was expressly abolished by Rule 7(c) of the

Federal Rules of Civil Procedure The Federal Rules of Civil Procedure (officially abbreviated Fed. R. Civ. P.; colloquially FRCP) govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling ...

("FRCP", also "Federal Rules") when the FRCP went into effect on September 16, 1938. The demurrer was replaced by the Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. The demurrer was abolished after American lawyers realized that the pleadings should frame only those issues that will be actively litigated through motion practice once both sides have fully stated their positions and the case is at issue. Although the demurrer technically also framed the issues in a case, treating the demurrer as a pleading came to be seen as irrational because it was the ''only'' pleading that required an immediate hearing and ruling on its content (which consisted of an attack upon the complaint), while the complaint and the answer merely stated the respective positions of each side but did not require

hearing Hearing, or auditory perception, is the ability to perceive sounds In physics, sound is a vibration that propagates as an acoustic wave, through a transmission medium such as a gas, liquid or solid. In human physiology and psycholog ...

s in and of themselves. Thus, it made sense that a discretionary attack upon the complaint that was already being drafted, calendared, heard, and ruled upon like a motion should simply be treated like one. Having purged the demurrer from federal courts, Rule 7(c) was deemed obsolete by the

Advisory Committee on Civil Rules Advisory may refer to: * Advisory board, a body that provides advice to the management of a corporation, organization, or foundation * Boil-water advisory, a public health directive given by government to consumers when a community's drinking wat ...

during the 2002–2007 FRCP revision cycle. It was therefore deleted from the version of the FRCP that went into effect on December 1, 2007.

State courts

A majority of U.S. states (approximately 35) have adopted civil procedure rules modeled after the Federal Rules and therefore have abolished the demurrer and replaced it with the motion to dismiss for failure to state a claim upon which relief can be granted. In

Ohio Ohio () is a state in the Midwestern region of the United States. Of the fifty U.S. states, it is the 34th-largest by area, and with a population of nearly 11.8 million, is the seventh-most populous and tenth-most densely populated. The sta ...

, for example, demurrers are specifically prohibited. However, a demurrer can still be filed by the defendant in a minority of U.S. state court systems. Demurrers are still used in

and

state court civil practice. In California, a demurrer must assume the truth of the facts alleged by the complaining party, but challenges the complaint as a matter of law. If a demurrer is sustained regarding the form of the complaint, leave to amend is liberally granted, and denial of leave to amend may constitute an abuse of discretion. 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. However, demurrers are prohibited in California in other family law actions. Also in California, a demurrer is not said to be "granted," but is said to be "sustained" or "overruled." An order sustaining a demurrer is not a readily appealable order unless it disposes of an entire action without leave to amend and results in a judgment. The term ''preliminary objection'' is used in Pennsylvania state court to refer to all motions made after the filing of a complaint but before the filing of an answer; preliminary objections may be made "in the nature of a demurrer" (seeking to dismiss a cause of action for legal insufficiency) or "in the nature of a motion to strike" (seeking to remove parts of a pleading for failure to abide by the technical rules), as well as various other means.Pa. R.C.P. 1028 As with the traditional demurrer, preliminary objections are regarded as pleadings. Preliminary objections in the nature of a demurrer are governed by Rule 1028(a)(4) of the Pennsylvania Rules of Civil Procedure.

References

{{law Civil procedure Common law legal terminology