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Demurrer

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.

Definition from Nolo’s Plain-English Law Dictionary

(dee-mur-ur) A written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on 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 will then be held to determine the validity of the demurrer. Some parts of a lawsuit may be defeated by a demurrer while others may survive. Some demurrers contend that the complaint is unclear or omits an essential element of fact. If the judge finds these errors, the judge will usually sustain the demurrer (state it is valid), but "with leave to amend" in order to correct the original complaint. If after amendment the complaint is still not legally good, a demurrer will be granted. In rare occasions, a demurrer can be used to attack an answer to a complaint. Some states have substituted a motion to dismiss for failure to state a cause of action for the demurrer.

Definition provided by Nolo’s Plain-English Law Dictionary.

August 19, 2010, 5:14 pm

 

"Appellee was indicted in the District Court for Southern Illinois for violation of [a federal statute] by the shipment in interstate commerce of [an] imitation or semblance of condensed milk or cream. . . .  The trial court sustained a demurrer to the indictment on the authority of an earlier case in the same court . . . .  

"[T]he demurrer challenges the validity of the statute on its face . . . .  The prohibition of shipment in interstate commerce of appellee's product . . . is a constitutional exercise of the power to regulate interstate commerce.  As the statute is not unconstitutional on its face, the demurrer should have been overruled and the judgment will be reversed."