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.

From now on, a case required only a complaint and an answer, with an optional cross-complaint and cross-answer, and with the demurrer kept as the standard attack on improper pleadings.

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.

The demurrer challenges the legal sufficiency of a claim, cause of action, or to the defenses set forth in an answer.

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.

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.

" 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.

No ruling on the demurrer was issued by the court and Thomas Jefferson Law School filed an answer to the complaint.

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 ).

In the alternative, a judge may sustain a demurrer " with prejudice " or " without prejudice.

If the demurrer is granted without prejudice, sometimes termed " leave to amend ", the plaintiff may correct errors filing a corrected, amended complaint.

In criminal cases, a demurrer may be used in some circumstances to challenge the legal sufficiency of the indictment or other similar charging instrument.

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.

A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party.

A demurrer to a complaint can terminate a lawsuit.

A demurrer is a pleading ( usually filed by a defendant ) which objects to the legal sufficiency of the opponent's pleading ( usually a complaint ) and demands that the court rule immediately about whether the pleading is legally adequate before the party must plead on the merits in response.

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 ).

Many courts will fine or sanction a party who files a demurrer for improper motive, for example, to harass or intimidate the opposing party.

The demurrer was abolished after American lawyers came to realize that the pleadings should frame only those issues that will be actively litigated through motion practice once both sides have fully stated their positions and the case is " at issue.

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.

Technically, a " demurrer " is not a motion ; a party does not file a motion for demurrer nor move the court to demur.

The Winton Company's defense made the costly mistake of concentrating on challenging the patent ’ s validity through demurrer ; by 1902 the case was still tied up and Winton was considering a settlement.

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.

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.

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.

Argument was heard on the demurrer in Philadelphia's Court of Common Pleas on 27 March, when it was argued that the inventor " could not be made to expose that which no one knew but himself and which was hidden in his own brain ".

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.

When a cause of action is abolished, a plaintiff who seeks to allege such a cause could be met with a successful demurrer.

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.

Since demurrer procedure required an immediate ruling like a motion, many common law jurisdictions therefore went to a narrower understanding of pleadings as framing the issues in a case but not being motions in and of themselves, and replaced the demurrer with the motion to dismiss for failure to state a cause of action or the application to strike out particulars of claim.

In the United States, if a complaining party sued for libel but failed to assert that the allegedly libelous statement is false, the claim could be dismissed on a demurrer or a motion to dismiss.

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 ).

A majority of U. S. States ( about 35 ) have adopted civil procedure rules modeled after the Federal Rules and therefore have abolished the demurrer and replaced it with the motion to dismiss for failure to state a claim upon which relief can be granted.

Appearing as counsel for Virginia, Conrad ’ s argument upon demurrer in the Supreme Court ( 206 U. S. 290 ) was in professional circles considered remarkable.

On October 25, 1999, the defendants moved for summary judgment, asking that the complaint be dismissed on the basis of the pleadings ( in effect a motion to dismiss or demurrer ).