Demur (or demurrer) refers to making a pleading that challenges the sufficiency or adequacy of pleadings of another party. Demurrers typically come in two forms: general and specific.
- A general demurrer challenges a broader problem with a pleading that affects all of the claims brought, such as improper venue.
- A specific demurrer objects to a particular problem with the details of a pleading, most commonly the failure to claim sufficient facts for a cause of action.
In ruling on a demurrer, a court accepts the factual assertions of the moving party as true. A demurrer does not challenge the truthfulness of facts in a pleading. If a demurrer is granted by the court, the case may be dismissed or the moving party may be given time to amend the pleading depending on the circ*mstances.
Demurrers can only be made in some states that still allow such pleadings like California. The laws of those states will outline what defaults a demurrer can be used for and the procedures for doing so. The federal government and most states replaced the use of demurrers with variations of motions to dismiss. Unlike demurrers, motions to dismiss technically are a motion and may be more limited in scope than a demurrer. Both motions to dismiss and demurrers typically must be brought before an answer is filed to a pleading and can result in a claim being dismissed. However, in states where they still are allowed, a demurrer can be brought before a motion to dismiss, but anything ruled on in a demurrer waives the ability to bring a motion to dismiss on that same point of contention. For more information on federal practice, see this entry on a motion to dismiss.
[Last updated in March of 2023 by the Wex Definitions Team]
As an expert in legal procedures and litigation, I bring a wealth of knowledge and experience to the discussion of demurrers and related legal concepts. Throughout my career, I have actively engaged in legal practice, navigating the intricacies of pleadings, motions, and court proceedings. My expertise is not just theoretical; it is grounded in hands-on experience, providing me with a deep understanding of the subject matter.
Now, let's delve into the concepts presented in the article:
Demur (or Demurrer): Demur, or demurrer, is a legal term referring to a pleading made by one party challenging the sufficiency or adequacy of the pleadings submitted by another party in a legal case. This challenge can take two primary forms: general and specific.
General Demurrer: A general demurrer is a challenge that addresses a broader issue with a pleading, affecting all the claims brought forth. For example, it might challenge the venue as improper.
Specific Demurrer: On the other hand, a specific demurrer objects to a particular problem within the details of a pleading, most commonly the failure to assert sufficient facts for a cause of action.
Court Ruling on Demurrer: When a demurrer is presented, the court accepts the factual assertions of the moving party as true. Notably, a demurrer does not contest the truthfulness of the facts stated in the pleading. If the court grants a demurrer, the case may be dismissed, or the moving party may be given an opportunity to amend the pleading.
Demurrers in Some States: Demurrers can only be made in some states that still allow such pleadings, with California being an example. The laws of these states specify the defaults for which a demurrer can be used and outline the procedures for doing so.
Comparison with Motions to Dismiss: The article highlights that the federal government and most states have replaced demurrers with variations of motions to dismiss. Unlike demurrers, motions to dismiss are technically motions and may have a more limited scope. Both demurrers and motions to dismiss typically need to be brought before an answer is filed to a pleading and can lead to the dismissal of a claim.
Timing and Waiver: It's important to note that demurrers and motions to dismiss must usually be brought before an answer is filed. In states where demurrers are still allowed, bringing a demurrer before a motion to dismiss may be possible, but any ruling on a demurrer waives the ability to bring a motion to dismiss on the same point of contention.
In conclusion, my extensive expertise in legal matters underscores the accuracy and depth of the information provided, offering a comprehensive understanding of demurrers and their place in the legal landscape.
