What is Demurrer?

Legal Definition
A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. 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 a case will demur to the complaint, but it is also possible for the plaintiff to demur to an answer. 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 in a complaint does not state a cognizable claim (for example, the claim is nonsense) or if it does not state all the required elements, then the challenged cause of action or possibly the entire complaint can be essentially 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.

At common law, a demurrer was the pleading through which a defendant would challenge the legal sufficiency of a complaint in criminal or civil cases, but today the pleading has been discontinued in many jurisdictions, including the United Kingdom, the U.S. federal court system, and most U.S. states (though some states including California, Pennsylvania, and Virginia retain it). 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 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 the litigation of the case. 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 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 or of public records such as a published legislative report showing the intent of the legislature in enacting a particular statute.
-- Wikipedia
Legal Definition
A defense asserting that even if all the factual allegations in a complaint are true, they are insufficient to establish a valid cause of action. The precise basis for a demurrer can vary, with some examples being a failure to state a claim or an allegedly unconstitutional statute.

In most jurisdictions, the demurrer is now called a motion to dismiss.
Legal Definition
(From the Latin demorari, or old French demorrer, to wait or stay.) In pleading, imports, according to its etymology, that the objecting party will not proceed with the pleading, because no sufficient statement has been made on the other side; but will wait the judgment of the court whether he is bound to answer. 5 Mod. 232; Co. Litt. 71, b; Steph. Pl. 61.

2. A demurrer may be for insufficiency either in substance or in form that is, it may be either on the ground that the case shown by the opposite party is essentially insufficient, or on the ground that it is stated in an inartificial manner; for the law requires in every pleading, two thing's; the one, that it be in matter sufficient; the other, that it be deduced and expressed according to the forms of law; and if either the one or the other of these be wanting, it is cause of demurrer. Hob. 164. A demurrer, as in its nature, so also in its form, is of two kinds; it is either general or special.

3. With respect to the effect of a demurrer, it is, first, a rule, that a demurrer admits all such matters of fact as are sufficiently pleaded. Bac. Abr. Pleas, N 3; Com. Dig. Pleader, Q 5. Again, it is it rule that, on a demurrer, the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled to it. Com. Dig. Pleader, M. 1, M 2; Bad. Abr. Pleas. N 3; 5 Rep. 29 a: Hob. 56; 2 Wils. 150; 4 East, 502 1 Saund. 285 n. 5. For example, on a demurrer to the replication, if the court think the replication bad, but perceive a substantial fault in the plea, they will give judgment, not for the defendant, but for the plaintiff; 2 Wils. R. 1&0; provided the declaration be good; but if the declaration also be bad in substance, then upon the same principle, judgment would be given for the defendant. 5 Rep. 29 a. For when judgment is to be given, whether the issue be in law or fact, and whether the cause have proceeded to issue or not, the court is always to examine the whole record, and adjudge for the plaintiff or defendant, according to the legal right, as it may on the whole appear.

4. It is, however, subject to, the following exceptions; first, if the plaintiff demur to a plea in abatement, and the court decide against the plea, they will give judgment of respondeat ouster, without regard to any defect in the declaration. Lutw. 1592, 1667; 1 Salk. 212; Carth. 172 Secondly, the court will not look back into the record, to adjudge in favor of an apparent right in the plaintiff, unless the plaintiff have himself put his action upon that ground. 5 Barn. & Ald 507. Lastly, the court, in examining the whole record, to adjudge according to the apparent right, will consider the right in matter of substance, and not in respect of mere form, such as should have been the subject of a special demurrer. 2 Vent. 198-222.

5. There can be no demurrer to a demurrer: for a demurrer upon a demurrer, or pleading over when an issue in fact is offered, is a discontinuance. Salk. 219; Bac. Abr. Pleas, N 2.

6. Demurrers are general and special, and demurrers to evidence, and to in


7. - 1. A general demurrer is one which excepts to the sufficiency of a previous pleading in general terms, without showing specifically the nature of the objection; and such demurrer is sufficient, when the objection is on matter of substance. Steph. Pl. 159; 1 Chit. Pl. 639; Lawes, Civ. Pl. 167; Bac. Abr. Pleas, N 5; Co. Lit. 72 a.

8. - 2. A special demurrer is one which excepts to the sufficiency of the pleadings on the,opposite side, and shows specifically the nature of the objection and the particuIar ground of exception. Co. Litt. 72, a.; Bac. Abr. Pleas, N 5.

9. A special demurrer is necessary, where it turns on matter of form only; that is, where, notwithstanding such objections, enough appears to entitle the opposite party to judgment, as far as relates to the merits of the cause. For, by two statutes, 27 Eliz. ch. 5, and 4 Ann. ch. 16, passed with a view to the discouragement of merely formal objections, it is provided in nearly the same terms, that the judges "shall give judgment according to the very right of the cause and matter in law as it shall appear unto them, without regarding any imperfection, omission, defect or want of form, except those only 'Which the party demurring shall, specifically. and particularly set down and express, together with his demurrer, as the causes of the same." Since these statutes, therefore, no mere matter of form can be objected to on a general demurrer; but the demurrer must be in the special form, and the objection specifically stated. But, on the other hand, it is to be observed, that, under a special demurrer, the party may, on the argument, not only take advantage of the particular faults which his demurrer specifies, but also of all objections in substance, or regarding the very right of the cause, (as the statute expresses it.) as under those statutes, need not be particularly set down. It follows, therefore, that unless the objection be clearly of the substantial kind, it is the safer course, in all cases, to demur specially. Yet, where a general demurrer is plainly efficient, it is more usually adopted in prctice; because the effect of the special form being to apprise the opposite party more distinctly of the nature of the objection, it is attended with the inconvenience, of enabling him to prepare to maintain his pleading by argument, or of leading him to apply the earlier to amend. With respect to the degree of particularity, with which, under these statutes, the special demurrer must assign the ground of objection, it may be observed, that it is not sufficient to object, in general terms, that the pleading is "uncertain, defective, and informal," or the like, but if is necessarily to show in what, it respect, uncertain, defective, and informal. 1 Saund. 161, n. 1, 337 b, n. 3; Steph. Pl. 159, 161; 1 Chit. Pl. 642.

10.- 3. A demurrer to evidence is analogous to a demurrer in pleading; the party from whom it comes declaring that he will not proceed, because the evidence offered on the other side, is not sufficient to maintain the issue. Upon joinder in demurrer, by the opposite party, the jury are, in general, discharged from giving any verdict; 1 Arch. Pr. 186; and the demurrer being entered on record, is afterwards argued and decided by the court in banc; and the judgment there given upon it, may ultimately be brought before a court of error. See 2 H. Bl. 187 4 Chit. Pr. 15 Gould on Pl. c. 9, part 2, ยง47 United States Dig. Pleading, Viii.

11. - 4. Demurrer to interrogatories. By this phrase is understood the reasons which a witness tenders for not answering a particular question in interrogatories. 2 Swanst. R. 194. Strictly speaking, this is not a demurrer, which admits the facts stated, for the purpose of taking the. opinion of the court but by an abuse of the term, the witness objection to answer is called a demurrer, in the popular sense. Gresl. Eq. Ev. 61.

12. The court are judicially to determine their validity. The witness must state his objection very carefully, for these demurrers are held to strict rules, and are readily overruled if they cover too much. 2 Atk. 524; 1 Y. & J. 32. See, in general, as to demurrers,, Bac. Abr. Pleas, N; Com. Dig. Pleader, Q; Saund. Rep. Index, tit. Demurrers; Lawes Civ. Pl. ch. 8; 1 Chit. Pl. 639-649 Bouv. Inst. Index, h. t.
-- Bouviers Law Dictionary
Legal Definition
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 lf the facts as stated in the pleading to which objection is taken be true, yet their legal consquencos are not such as to put the demurring party to the necessity of answering them or proceeding further with the cause. Reid v. Field, 83 Va. 26, 1 S. E. 395; Parish v. Sloan, 38 N. C. 609; Goodman v. Ford, 23 Miss. 595; Hos-tetter Co. v. Lyons Co. (C. C.) 99 Fed. 735. 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 plcading. It admits the facts, and refers the law arising thereon to the court. 7 How. 581. It Imports that the objecting party will net proceed, but wlll wait the judgment of the court whether he is bound so to do. Co. Litt 71b; Steph. PI. 61. 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 ac-ceunt 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. 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. PI. 140-142; 1 Chit. PI. 663. See Reid v. Field, 83 Va. 26, 1 S. E. 395; In S. v. National Bank (C. C.) 73 Fed. 381; McGuire v. Van Pelt, 55 Ala. 344; Taylor v. Taylor, 87 Mich. 64, 49 N. W. 519. A special demurrer 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. Darcey v. Lake, 46 Miss. 117; Christmas v. Russell, 5 Wall. 303, 18 In Ed. 475; Shaw v. Chase, 77 Mich. 436, 43 N. W. 883. 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. Wright v. Weber, 17 Pa. Super. Ct. 455; Walker v. Co.nant, 65 Mich. 194, 31 N. W. 786; Brooks v. Gibbons, 4 Paige (N. Y.) 375; Clarke v. Land Co., 113 Ga. 21, 38 S. E. 323. 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 BlComm. 300.
See also
-- Black's Law Dictionary
Legal Definition
An objection to a pleading that one ought not to answer it for some defect of law in the pleading. 7 How. (U. S.) 573, 12 L. Ed. 824.
-- Ballentine's Law Dictionary