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demurrer and is
It may have been preceded by an optional " pre-answer " motion to dismiss or demurrer ; if such a motion is unsuccessful, the defendant must file an answer to the complaint or risk an adverse default judgment.
Instead of filing an answer within the time specified in the summons, the defendant can choose to dispute the validity of the complaint by filing a demurrer ( in the handful of jurisdictions where that is still allowed ) or one or more " pre-answer motions ," such as a motion to dismiss.
In the many discussions that I held with such officials up to the Administrator of the National Aeronautics and Space Administration and the President's Science Adviser, not one Victorian demurrer was ever voiced ; and a great deal of helpful encouragement was given ... The idea of government censorship of the Pioneer 10 plaque is now so well documented and firmly entrenched that no statement from the designers of the plaque to the contrary can play any role in influencing the prevailing opinion.
A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party.
The word demur means " to object "; a demurrer is the document that makes the objection.
If a cause of action in a complaint does not state a cognizable claim ( e. g., the claim is nonsense ) or if it does not state all the required elements, then the challenged cause of action or possibly the entire complaint can be " thrown out " with a demurrer as not legally sufficient.
A demurrer is typically filed near the beginning of a case, in response to the plaintiff filing a complaint or the defendant answering the complaint.
An important distinction about a demurrer is that the party filing the demurrer is not allowed to challenge the facts alleged in the complaint, nor can a demurrer contest the ultimate merits of a case or claim.
Specifically, when ruling on a demurrer a judge is required to assume as true or proved all material facts alleged in the complaint, even if those facts appear fabrications by the complainant or easily disproved during litigation of the case.
A demurrer is commonly filed by a defendant in response to a complaint filed by the plaintiff.
Although a plaintiff may demur to a defendant's answer to a complaint or the defendant's affirmative defenses, a demurrer to an answer is less common because it may be a poor strategic move.
A demurrer to an answer may simplify a lawsuit, but it usually will not end the lawsuit ; it is normally used only when the plaintiff intends to move for summary judgment in their favor at the earliest opportunity and needs to preemptively attack some of the defendant's affirmative defenses.
Technically, a " demurrer " is not a motion ; a party does not file a motion for demurrer nor move the court to demur.
Rather, a demurrer is a particular type of pleading and " demurring " is the act where a party formally requests the court to dismiss a cause of action (" claim ") or the entire complaint.
In lay terms, a judge who " sustains " a demurrer is saying that the law does not recognize a legal claim for the facts stated by the complaining party.
If the judge " overrules " a demurrer, the court is allowing the claim or case to proceed.

demurrer and pleading
At each stage, a party could file a demurrer to the other's pleading ( essentially a request that the court immediately rule on whether the pleading was legally adequate before they had to file a pleading in response ) or simply file another pleading in response.
Instead of piling layers and layers of pleadings and averments on top of each other, a pleading that was attacked by demurrer would either be completely superseded by an amended pleading or would proceed immediately " at issue " as to the validly pleaded parts.
At common law, a demurrer was the pleading through which a defendant would challenge legal sufficiency of a complaint in criminal or civil cases, but today the pleading has been discontinued in many jurisdictions, including the United Kingdom and the U. S. federal court system ( though some state jurisdictions, including California and Virginia, retain it ).
In criminal cases, a demurrer was considered a common law due process right, to be heard and decided before the defendant was required to plead " not guilty ", or make any other pleading in response, without having to admit or deny any of the facts alleged.
" Although the demurrer technically also framed the issues in a case, treating the demurrer as a pleading came to be seen as irrational because it was the only pleading that required an immediate hearing and ruling on its content ( which consisted of an attack upon the complaint ), while the complaint and the answer merely stated the respective positions of each side but did not require hearings in and of themselves.

demurrer and usually
Because leave to amend is so liberally granted, a demurrer usually is only filed if a plaintiff refuses to repair a fatally deficient complaint or if the complaint cannot ever be supported by law.
A special demurrer refers to an attack on the form, rather than the substance, of the charge: if the defendant correctly identifies some defect " on the face " of the indictment, then the charges are subject to being dismissed, although usually the indictment can be re-drawn ( re-written ) and re-presented to the grand jury or other charging authority.
It has been superseded by the more modern motion to quash, usually a verbal application to the judge to rule the indictment null and void and to stop the case ( demurrer was pleaded in writing ).

demurrer and filed
Then the judge can sustain ( rule in favor of ) a demurrer on the basis that the complaint's date-related allegations indicate it was filed too late (" the statute of limitations has run "), unless the plaintiff can show a typographical error ( a so-called " scrivener's error ") occurred in the drafting of the complaint.
Keely was reluctant to reveal his secrets, and filed a demurrer on 20 January 1882 to the bill in equity presented against him by the Keely Motor Company's stockholders.
Defendants Miller and Layton filed a demurrer challenging the relevant section of the National Firearms Act as an unconstitutional violation of the Second Amendment.
As sex between unmarried persons was criminalized under Virginia's anti-fornication statute, Ziherl filed a demurrer in response to Martin's suit.
The school has filed a demurrer in the case contending, basically, that Alaburda is simply suffering buyer's remorse.
No ruling on the demurrer was issued by the court and Thomas Jefferson Law School filed an answer to the complaint.

demurrer and by
Perhaps the moralities of world law are not advanced by stealing American diplomatic papers and planes, but the Kennedy administration can always file a demurrer to the effect that, but for its own incompetence in protecting American interests, these things would not happen.
Similarly, a complaint for breach of a promise to marry could be met by a demurrer because the law in most jurisdictions expressly prohibits such claims on public policy grounds ( while there may be claims for damages on a breach of promise to marry, e. g., U. S. courts are not going to force someone to marry another ).
The judge either grants the demurrer by sustaining it, or denies it by overruling the demurrer.
In civil cases in the United States district courts, the demurrer was expressly abolished by Rule 7 ( c ) of the Federal Rules of Civil Procedure (" FRCP ", also " Federal Rules ") when the FRCP went into effect on September 16, 1938.
The demurrer was replaced by the Rule 12 ( b )( 6 ) motion to dismiss for failure to state a claim upon which relief can be granted.
Having accomplished its task of purging the demurrer from federal courts, Rule 7 ( c ) was deemed obsolete by the Advisory Committee on Civil Rules during the latest revision cycle for the FRCP ( which took place from 2002 to 2007 ).
However, a demurrer can still be made by the defendant in a minority of U. S. state court systems.
Additionally, when children are removed from their parents and taken into foster care in California, the parents may challenge the sufficiency of the dependency complaint by means of a motion akin to demurrer, which operates similarly to a demurrer.
Judge Baldwin denied the demurrer and was affirmed by the Minnesota Supreme Court on appeal.

demurrer and defendant
Lawyers informally define a demurrer as a defendant saying, " So what?
For example, where a complaint alleges the defendant " drove through a red traffic light ," the demurring party cannot attach evidence to the demurrer ( e. g., a photograph ) showing the traffic signal was green.
If the demurrer is overruled, the defendant is ordered to file an answer within a certain period of time or else risk a default judgment.
Traditionally, if the defendant could admit every allegation of the indictment and still be innocent of any crime, then a general demurrer would be sustained and the indictment would be dismissed.

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