CITES BY TOPIC:  demurrer

Black's Law Dictionary, Sixth Edition, pp. 432-433:

Demurrer.  An allegation of a defendant, which admitting the matters of fact alleged by complaint or bill (equity action) 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 complaint or bill, or on account 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 formal mode of disputing the sufficiency in law of the pleading of the other side.  IN effect it is an allegation that, even if the facts as stated in the pleading to which objection is taken to be true, yet their legal consequences are not such as to put the demurring party to the necessity of answering them or proceeding further with the cause.  An assertion that complaint does not set forth a cause of action upon which relief can be granted, and it admits, for purpose of testing sufficiency of complaint, all properly pleaded facts, but not conclusions of law.  Balsbaugh v. Rowland, 447 Pa. 423, 290 A.2d 85, 87.  A legal obligation to the sufficiency of a pleading attacking what appears on the face of the document.  People v. Hale, 232 Cal.App.2d 112, 42 CalRptr. 533, 538.  See Calif. Code of Civil Proc. §430.10.  Seel also Demurrer to evidence.

By Federal Rules of Civil Procedure (adopted in whole or part in most states) demurrers, pleas and exceptions for insufficiency of a pleading are abolished.  Rule 7(c).  Every defense in law shall be made by motion or by answer; motions going to jurisdiction, venue, process, or failure to state a claim are to be disposed of before trial, unless the court orders otherwise.  While the Federal Rules do not provide for the use of a demurrer, an equivalent to a general demurrer is provide din the motion to dismiss for failure to state a claim on which relief may be granted.  Fed.R. Civil P. 12(b).  Objections to the pleadings by means of demurrer still exists however in certain states; see e.g. Calif. Code of Civil Proc. §430.10 et seq.

[Black's Law Dictionary, Sixth Edition, pp. 432-433]

GENERAL COURT CITES:

"To sustain a demurrer for want of jurisdiction, the defect must appear on the face of the accusatory pleading." People v. Tolbert (1986, 3d. District), 176 Cal. App. 3d. 685, 222 Cal. Rptr. 313.

"The erroneous overruling of a non-statutory demurrer by a trial court is possible, and can result in reversal of the judgment of conviction on appeal. Thus, a non-statutory, common law demurrer exists as a vehicle for constitutional and other attacks on the sufficiency of an accusatory pleading." People v. Jackson (1985, 1st District), 171 Cal. App. 3d. 609, 217 Cal. Rptr. 540.

"156. Where an issue in law is tendered by demurrer the opposing party must join in it.

The tender of an issue of law must always be accepted. [Citations.] A party cannot decline a question on the legal sufficiency of his own pleading without abandoning it [his pleading]. The acceptance is therefore as imperative as in the case of an issue of fact. . . . With respect to issues in law tendered by a demurrer, it is immaterial whether the demurrer be in proper form or not. In either case the opposite party is equally bound to join in demurrer; for it is a rule that there can be no demurrer upon a demurrer [citations], and there is no ground for a traverse or pleading in confession or avoidance, while the pleading to which the demurrer is taken is still unanswered.

" Common Law Pleading Hornbook Series (1923), Benjamin J. Shipman, pp. 288-289.

"151. A demurrer admits, for the purpose of the decision on the demurrer, and for that purpose only, all matters of fact that are well pleaded. It does not admit matters of fact that are not well pleaded, nor does it admit allegations of conclusions of law or of fact." Common Law Pleading Hornbook Series (1923), Benjamin J. Shipman, p. 282.

"A demurrer only admits the facts that are well pleaded. It does not admit conclusions, either of law or of fact, which the adverse party may have seen fit to draw in his pleading [citations]. Nor will it admit an averment contrary to what before appears certain on the record [citations], or an averment which the
pleader was estopped to make [citations]; nor an averment which the court can judicially know to be impossible or untrue [citations]; nor an immaterial averment [citations]." Common Law Pleading Hornbook Series (1923), Benjamin J. Shipman, p. 282-283.

"A demurrer does not admit as true facts which are alleged as conclusions of law, evidence, matters of opinion, or surplusage." Carpenter v. Hamilton (1943) 59 C.A.2d 146, 138 P.2d 353, 59 C.A.2d 149, 138 P.2d 149.

"A demurrer admits allegations of fact but not conclusions of the pleader." Cedars of Lebanon Hospital v. Los Angeles County (1949) 206 P.2d 915, subsequent opinion 35 C.2d 729, 221 P.2d 31, 15 A.L.R.2d 1045.

"The presence of a pleader's conclusion does not strengthen the pleading when attacked by demurrer." Lyon v. Carpenter's Hall Ass'n. of San Francisco (1924), 66 C.A. 550, 226 P. 942.

"Conclusions of the pleader are not admitted by demurrer." Youdall v. Kaufman (1921), 55 C.A. 363, 203 P. 448.

"General demurrers admit the truth of all the material factual allegations of the complaint, regardless of any possible difficulty in proving them, but do not admit allegations which constitute conclusions of law or which are contrary to matters of which judicial notice must be taken." Martinez v. Socoma Cos. (1974), 11 C3d 394, 113 Cal. Rptr. 585, 521 P.2d 841.

"A general demurrer, not a motion to strike, is the appropriate method of attacking the sufficiency of a complaint." Bezaire v. Fidelity & Deposit Co. (1970), 12 C.A.3d 888, 91 Cal. Rptr. 142.

"The question of whether a pleading is ambiguous and uncertain cannot be raised by a general demurrer." Bennett v. Morris (1894), 4 C.U. 834. 37 P. 929.

"An objection to a complaint, on the ground of ambiguity or uncertainty, can be taken only by special demurrer." Kirsch v. Derby (1892), 96 C. 602, 31 P. 567.

"Objection that complaint is ambiguous cannot be taken under general demurrer." Slattery v. Hall (1872), 43 C. 191.

"Where is complaint states all the necessary facts, but states them imperfectly, a demurrer, to be effective, must be special, and directed against the particular defects complained of." Tehama County v. Bryan (1885), 68 C. 57, 8 P. 673.

SPECIAL DEMURRER:

"Formal defects in answer could be reached only by special demurrer." Anglo California Trust v. Kelley (1931), 117 C. A. 692, 4 P.2d 604.

"Uncertainty in contract is not matter for special demurrer by party promisor to complaint thereon. Civ. Code § 1654." Juri v. Koster (1927), 84 C.A. 298, 257 P. 901.

"Where a complaint states imperfectly all the facts essential to a recovery, a demurrer to be effectual must be special and point out the very defect." Union Ice Co. v. Doyle (1907), 6 C.A. 284, 92 P. 112.

"Objection that complaint is ambiguous or uncertain or that essential facts appear only inferentially, as conclusion of law must be raised by special demurrer." Cullinan v. Mercantile Trust Co. of California (1927), 80 C.A. 377, 252 P. 647.

"Objection that essential facts appear only inferentially must be raised by special demurrer." Manuel v. Calistoga Vineyard Co. (1936), 17 C.A.2d 377, 61 P.2d 1204.

"Conclusion of law is insufficient statement of fact when attacked by general demurrer, and no estoppel, waiver, or other cure appears of record. Code Civ. Proc. §426." Smith v. Bentson (1932), 127 C.A.Supp. 789, 15 P.2d 910.

"Common counts, though mainly conclusions of law, are not subject to either general or special demurrer." Smith v. Bentson (1932), 127 C.A.Supp. 789, 15 P.2d 910.

WAIVER OF DEMURRER:

"If, after demurrer, the defendant pleads, he waives the demurrer." Pierce v. Minturn (1851), 1 C. 470.

"Consent to overruling of demurrer does not waive demurrer for want of sufficient cause of action." Harris v. Seidell (1934), 1
C.A.2d 410, 36 P.2d 1104.

"A general demurrer is not waived by consenting that it may be overruled." Evans v. Gerken (1894), 105 C. 311, 38 P. 725.

"Demurrers on which the record shows no action to have been taken will be considered waived." Diamond Coal Co. v. Cook (1900), 6 C.U. 446, 61 P. 578.

"Code Civ. Proc. §472, provides that a demurrer is not waived by filing an answer at the same time. Held, that a demurrer to a complaint is not waived by the subsequent filing of an answer upon leave given by the court." Curtiss v. Bachman (1890), 24 P. 379, 84 C. 216.

ADMISSIONS AS TO STATUTES OR AS TO FOREIGN LAWS:

"If a pleading misstates the effect and purpose of the statute upon which the party relies, a demurrer to the pleading does not admit the correctness of the construction, or that the statute imposes the alleged obligations or confers the alleged rights." Pennie v. Reis (1889), 132 U.S. 464, 10 S.Ct. 149, 33 L.Ed. 426. (Note: Read this Case!!!)

SPECIFICATION OF GROUNDS:

"Specification must be made of grounds on which a complaint is subject to special demurrer." Johnson v. Clark (1936), 7 C.2d 529, 61 P.2d 767.

"Defendant desiring more specific pleading or more information should demur specially or demand a bill of particulars. Code Civ. Proc. §454." Cooney v. Glide (1929), 97 C.A. 77, 275 P. 257.

NECESSITY OF DEMURRERS-FAILURE TO OBJECT OT COMPLAINT IS WAIVED ON APPEAL:

"Where record did not disclose that a demurrer was interposed to the complaint because of alleged lack of essential allegations, complaint would be liberally construed on appeal in aid of judgment for plaintiff." American Marine Paint Co. v. Tooley (1942), 52 C.A.2d 530, 127 P.2d 960.

"On objection that complaint does not state cause of action raised for first time on appeal pleading will be liberally construed and, if necessary facts appear even by implication or as a conclusion of law, judgment based upon complaint will be upheld." Newmire v. Chapman (1937), 64 P.2d 734, 18 C.A.2d 360.

"Where complaint is first attacked on appeal as not stating facts sufficient to constitute a cause of action, it will then be liberally construed and upheld, if necessary facts appear by implication only, or as a conclusion of law." Tietke v. Forrest (1923), 64 C.A. 364, 221 P. 681.

"A pleading is to be construed most strongly against the pleader, at least when they are sworn to." Green v. Covillaud (10 C. 317, 70 Am. Dec. 725.

"Pleadings in abatement should be strictly construed." Kadota Fig Ass'n. of Producers v. Case-Swayne Co. (1946), 73 C.A.2d. 796, 167 P.2d. 518.

"Complaint, upon demurrer, is construed most strongly against the pleader." Tehama County v. Pacific Gas & Electric Co. (1939), 44 C.A.2d. 566, 91 P.2d. 645.

"Demurrer for uncertainty lies for what is said with uncertain meaning and not for what is omitted." Smith v. Hollander (1927), 85 C.A. 535, 259 P. 958.

DEMURRER AND ANSWER:

"The defendant may demur and answer at the same time to the entire complaint, and also to each cause of action stated therein." People v. McClellan (1866), 31 C. 101.

"An issue of law and fact should not be mixed in an answer. A demurrer should be filed as a separate pleading." Brooks v. Douglass (1867), 32 C. 208.

"When considering the sufficiency of a pleading attacked by demurrer, defects in the pleading attacked cannot be held to be cured by allegations in an answer filed at the same time as the demurrer, for the answer is before the court only in the event that the pleading withstands the test of the demurrer." Metropolitan Life Ins. Co. v. Rolph (1920), 184 C. 557, 194 P. 1005.

"Averments in the answer will not be considered when passing upon the demurrer to the complaint." Monsch v. Pellissier (1922), 187 C. 790, 204 P. 224.