PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

DEMURRER

From the Latin demorari or old French demorrer, to wait or stay. In pleading, imports 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. Demurrers are no longer available in Federal and many state courts. In Federal Courts the equivalents are often various motions pursuant to F.R.Civ.P. Rule 14.

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 two things in every pleading; that it be in matter sufficient, and that it be deduced and expressed according to the forms of law. It is cause for demurrer if either of these be wanting. A demurrer is of two kinds; general or special.

With respect to the effect of a demurrer, it is a rule that a demurrer admits all such matters of fact as are sufficiently pleaded. Again, it is a 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. 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. 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. 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. 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.

Demurrers are general and special, and demurrers to evidence, and to interrogatories. 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. 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. 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.

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 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.

Demurrer To Interrogatories. By this phrase is understood the reasons which a witness tenders for not answering a particular question in interrogatories. 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. 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.

--b--

Google+


ADDITIONAL INFO

Follow Us!



Our Most Popular Article:
Power of Attorney
Our Most Popular Page:
Free Legal Forms
Our Newest Article: Personal Finance Guide