Demure Legal Dictionary
A Demurrer challenges a complaint on the basis that the complaint at issue should be dismissed because it does not provide sufficient facts to support a plea. Essentially, this defense claims that while all of the factual allegations in a complaint are true, they do not create a legally recognizable claim for relief. “Demurrer.” dictionary Merriam-Webster.com, Merriam-Webster, www.merriam-webster.com/dictionary/demurrer. Retrieved September 27, 2022. N. (dee-muhr-ur) a written response to a complaint filed in a lawsuit, which actually argues for dismissal with the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit. A hearing before a judge (according to the law and the schedule of applications) is then held to determine the validity of the demurrage. Some causes of action can be defeated by a demurrer, while others can survive. Some critics argue that the complaint is unclear or omits an essential element of the fact. If the judge finds these errors, he will usually maintain the demurrer (indicate that it is valid), but “with permission to modify” to allow changes to make the initial complaint good. A change in the complaint cannot always overcome demurrage, as in a case filed after the legally permissible time to take legal action. If the complaint is still not valid after modification, demurrage will be granted.
In rare cases, a demurrer can be used to attack a response to a complaint. Some States have replaced a request for rejection because they have not invoked the Demurrer. Subscribe to America`s largest dictionary and get thousands of additional definitions and advanced search – ad-free! DEMURRER. (From the Latin demorari, or Old French to demorrer, wait or stay.) The brief, according to its etymology, indicates that the objecting party will not pursue the brief because, on the other hand, no sufficient explanation has been made; however, the court`s judgment will wait to see if it is obliged to respond. 5 Mod. 232; Co. Litt. 71, b; Steph. P. 61.
(2) A demurrer may be inadequate, either in substance or in form, i.e. either on the ground that the case presented by the other party is substantially insufficient or on the ground that it is presented artificially; for the law requires two things in every pleading; that it is sufficient in this matter; the other, that it is derived and expressed according to legal forms; And if either of them is missing, that`s deMurrer`s cause. Hops. 164. A demurrer, as it is in its nature, and therefore also in its form, is of two species; it is either general or special. 3. As regards the effect of a demurrer, it is, on the one hand, a rule for a demurrer to allow all the facts which are sufficiently invoked. Ferry. Abr. Means, N 3; Com. Dig. Pleader, Q 5.
Again, the rule is that the court reviews the entire protocol in the case of a demurrer and renders a judgment for the party who, on the whole, appears to be entitled to it. Com. Dig. Pleader, M. 1, M 2; Bad. Abr. Means. N 3; 5 Rep. 29 a: Hob. 56; 2 Wils. 150; 4 East, 502 1 Saund. 285 Paragraph 5 If, for example, the Court considers that replication is bad but perceives a clerical error in the action, it will give judgment not for the defendant but for the plaintiff if it considers that replication is bad; 2 Wils.
A. 1&0; provided the explanation is good; But if the explanation is also bad on the merits, then a judgment would be rendered for the defendant according to the same principle. 5 Rep. 29 a. Because if a judgment is to be rendered, whether it is a legal or factual issue and whether the case has been issued or not, the court must always review the entire case and decide for the plaintiff or defendant in accordance with legal law, as it may appear as a whole. 4. However, it is subject to the following exceptions: First, if the plaintiff yields to a reduction objection and the court rules against the objection, it will render a judgment on the dismissal of the complaint, regardless of any lack of explanation. Lutw.
1592, 1667; 1 Salk. 212; Carth. 172 Second, the Court will not look at the minutes in order to rule in favour of a manifest right of the applicant, unless the applicant himself has based his action on that ground. 5 barns. & Ald 507. Finally, when examining the protocol as a whole in order to rule in accordance with obvious law, the Court will take account of the law on the merits and not of the mere form in which it should have been the subject of a particular leap. 2 Ventilation. 198-222.
5. There can be no demurrer to a demurrer: for a demurrer on a demurrer or advocacy, if a problem is actually offered, is a termination. Salk. 219; Ferry. Abr. Means, N 2.6. Demurrer are general and special and evidence and interrogations. 7.-1. A general demurrer is one that excludes the sufficiency of an earlier pleading in general terms, without specifying the nature of the objection; and such a denier is sufficient if the objection relates to a substantive issue. Steph. p. 159; 1 chit.
p. 639; Lawes, Civ. Pl. 167; Ferry. Abr. Means, N 5; Co. Lit. 72 s. 8.-2.
A special demurrer is one that excludes the appropriateness of the opposing party`s pleadings and, in particular, emphasizes the nature of the objection and the particular reason for the exception. Co. Litt. 72, s.; Ferry. Abr. Means, N 5.9. A special demurrer is necessary if it concerns only questions of form. that is to say, if, notwithstanding such objections, it appears sufficient to entitle the other party to a judgment in so far as it concerns the merits of the case. Because, by two laws, 27 Eliz. Cap. 5 and 4 Ann.
Chap. 16, which were adopted with a view to deterring purely formal objections, it is provided in the same terms that judges “shall decide, in accordance with the law of the case and the case, as they appear, without pointing out imperfection, omission, insufficiency or absence of form, with the exception of those which are only “what the party retains, in particular. and in particular, with its demurrer, posed and expressed as the causes of the same. Since these statutes cannot therefore be challenged by a simple question of form by a general demurrer; However, the demurrer must be in the special form and the objection must be expressly stated. On the other hand, however, it should be noted that, under a particular charge, the party may exploit not only the particular deficiencies mentioned by its debtor, but also any substantive objection or the law of the matter itself (as expressed by law) within the meaning of these statutes. do not need to be specifically defined. It follows that, in any event, it is the surest way to complain in particular, unless the objection is manifestly significant in nature. However, if a general demurrer is clearly effective, it is more likely to be adopted in practice; Since the special form has the effect of informing the other party more clearly of the nature of the opposition, it has the disadvantage of being able to prepare to maintain its memorial by reasoning or of encouraging it to request the previous amendment. As to the degree of particularity with which, according to those statutes, the special opponent must yield the ground for opposition, it can be said that it is not sufficient to object in general terms that the pleading is “uncertain, erroneous and informal” or similar, but whether it is necessarily intended to show in what direction, uncertain, erroneous and informal.
1 hour. 161, No. 1, 337 b, No. 3; Steph. pp. 159-161; 1 chit. P. 642. 10.- 3.
A demurrer for evidence is analogous to a demurrer in the medium; the party from whom he comes declares that he will not proceed because the evidence presented on the other side is not sufficient to support the case. Once the other party has joined, the jury is generally exempt from the verdict; 1 Arch. Pr. 186; and the Demurrer, which is on file, is then argued and decided by the court in Banc; and the judgment rendered therein 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, Sec. 47 United States Dig. Advocacy, Viii. 11.-4. Demurrer for questioning. This sentence refers to the reasons given by a witness because he did not answer a certain question during interrogations. 2 Swanst. R. 194. Strictly speaking, it is not a perpetrator who admits the above facts to take them. But by an abuse of the term, the witness`s objection to the answer is called a demurrer in the popular sense.