Definition
A demurrer is a formal challenge to the legal sufficiency of an opposing party's pleading. The demurring party, in effect, concedes all facts stated in the challenged pleading and argues that those facts, even taken as entirely true, are insufficient as a matter of law to support the claim or defense at issue. Because a demurrer accepts the pleaded facts for purposes of argument, it raises a pure question of law for the court — not a question of fact for a jury. If the demurrer is sustained, the opposing party's pleading fails on its face. If overruled, the case proceeds and the demurring party must answer.
A demurrer does not contest what happened. It contests whether what happened, as described, is legally cognizable.
Common Language
Modern common usage (Wiktionary): A motion by a party to a legal action for the immediate or summary judgment of the court on the question of whether, assuming the truth of the matter alleged by the opposite party, it is sufficient in law to sustain the action or defense.
Historical common usage (Webster's 1913): A stop or pause by a party to an action, for the judgment of the court on the question whether, assuming the truth of the matter alleged by the opposite party, it is sufficient in law to sustain the action or defense.
The common-language definitions are unusually close to the legal definition — demurrer has no significant life outside legal usage. The Webster's 1913 definition, however, captures something the modern Wiktionary definition softens: the notion of a literal stop or pause in the proceedings. In common law pleading, a demurrer did not merely challenge a pleading — it halted forward progress entirely until the court resolved the legal question. That procedural arrest is the historical core of the term.
Common Confusion
DEMURRER VS. MOTION TO DISMISS
In modern federal practice and in most states following code pleading, the demurrer has been substantially replaced by the motion to dismiss for failure to state a claim (Federal Rule of Civil Procedure 12(b)(6)). The two devices are functionally similar — both test the legal sufficiency of pleadings while accepting alleged facts as true — but they are not identical instruments. The demurrer was a formal common law pleading with its own procedural consequences and waiver rules. The motion to dismiss is a motion practice device. Researchers encountering "demurrer" in pre-code materials should not simply substitute modern motion-to-dismiss doctrine; the procedural stakes and consequences may differ significantly.
Recognized Forms
/SUBTYPES
General demurrer: Challenges the sufficiency of the entire pleading — the claim as stated does not amount to a legally cognizable cause of action or defense, regardless of any technical defect.
Special demurrer: Challenges a specific, identified defect in the form or manner of the pleading — such as uncertainty, ambiguity, or improper joinder — rather than a wholesale failure of the legal theory. A special demurrer typically required the objecting party to specify the precise ground.
Demurrer to evidence: An objection raised at trial, after a party has presented all their evidence, asserting that the evidence is legally insufficient to support a verdict for that party. The opposing party rests on the demurrer rather than presenting their own evidence. This form is largely obsolete.
Speaking demurrer: A demurrer that attempts to import facts not found in the challenged pleading — traditionally disallowed, as a demurrer must stand or fall on the face of the pleading itself.
Why It Matters in Research
The demurrer is one of the most significant structural features of common law pleading, and researchers encountering it in pre-twentieth-century case law, treatises, and practice manuals need to understand both its mechanics and its historical trajectory.
Before code pleading reforms began with the Field Code (New York, 1848) and accelerated through the late nineteenth and early twentieth centuries, demurrer was the primary mechanism for testing the legal adequacy of pleadings. A substantial portion of early appellate decisions in the Law Mind corpus turn on whether a demurrer was properly sustained or overruled — and the outcome often determined the entire case, not merely the pleadings round. When a court sustained a demurrer, it was frequently issuing what amounted to a ruling on the merits of the legal theory, not merely sending the parties back to re-plead.
The distinction between general and special demurrer matters in reading historical records. Many jurisdictions held that a general demurrer could not be used to raise technical form defects, and a party who used a general demurrer when a special demurrer was required might waive the objection entirely. Conversely, failing to demur at the proper stage could constitute waiver of the legal objection in subsequent proceedings.
In equity practice, the demurrer operated somewhat differently — it was available not only to challenge insufficient pleadings but also to raise defenses such as want of jurisdiction, lack of standing, or the bar of a statute of limitations apparent on the face of the bill. Researchers moving between law and equity sources in the same era should not assume the demurrer worked identically in both systems.
The survival of demurrer practice varies considerably across the Law Mind corpus depending on jurisdiction and time period. California retained the demurrer after adopting code pleading and continues to use it today. Many other states phased it out progressively. Federal courts eliminated it by adoption of the Federal Rules of Civil Procedure in 1938. Materials from after 1938 that still use demurrer terminology are almost certainly either state court materials, equity practice survivals, or historical references.
Historical Dictionary Support
The historical dictionaries converge on the central definition with notable consistency: a demurrer is a pleading device that halts proceedings to present a pure question of law, accepting the opposing party's facts as true.
Burrill's Law Dictionary captures the original sense most vividly, tracing the term to the Latin demorari — to wait, stop, or stay — and describing it literally as "a pause, or rest. A resting in the judgment of the law." This is not merely etymological color; the metaphor of physical pause reflects the actual procedural consequence. The case stopped moving until the court resolved the demurrer.
Rapalje and Lawrence provide the Latin root and a telling early citation from the Year Book (1 Edw. II), suggesting the demurring party was in effect saying: we rest in the court's discretion as to whether we are even required to answer. This framing — the demurrer as a conditional refusal to proceed — is important for reading early common law materials.
Anderson's Dictionary of Law offers three useful formulations that together capture the device's essential logic: it is a declaration that the party will go no further; an admission of fact submitting the law to the court; and the tender of an issue in law upon the facts established by the pleading. The third formulation is particularly precise — the demurrer does not merely object but affirmatively frames the legal issue for the court's resolution.
Black's Law Dictionary (both editions) provide near-identical definitions, emphasizing that a demurrer alleges that the legal consequences of the admitted facts do not require the demurring party to answer or proceed further. Black's 2nd edition adds case citations that anchor the definition in actual judicial application.
The historical sources are silent on the transition away from demurrer under code pleading, which is expected given their publication dates, but this is precisely where the researcher must supply interpretive context. The historical dictionaries describe a pleading world that was already beginning to fracture by the time some of these editions were published.
Jurisdictional Note
California is the most prominent jurisdiction retaining the demurrer in modern practice; it remains a standard procedural tool in California civil litigation. Most other states and all federal courts have replaced it with motions to dismiss. In jurisdictions that abolished the demurrer by statute or rule, pre-abolition case law discussing demurrer standards may still inform how courts interpret the successor motion to dismiss, but the procedural rules governing waiver, timing, and consequences should not be assumed to carry over directly.