 |
|
|
|
|
|
|
|
 |
|
||||||
|
|||||||
you are here: > Canonum De Ius Positivum
> Article 236
 |
VII. Law |
|
| 7.2 Principles of Law | ||
| Article 236-Demurrer | ||
| Canon 2837 | ||
| Demurrer is a formal written response to a complaint in suit objecting to the legal sufficiency to proceed. A Demurrer asserts, without disputing the facts, that the complaint in question does not adequately state all the necessary and key elements of a valid cause of action and that the demurring party is therefore entitled to immediate judgment or dismissal. | ||
 |
||
| Canon 2838 | ||
| The word “demurrer” comes from the combination of Latin de (out, down) +muralis (fighting against). Hence the literal meaning of the word demurrer is to “cease fighting”. Thus demurrer is a call to the court to “cease fighting” and denial of consent to proceed until a matter of law is adjudicated. | ||
|
||
| Canon 2839 | ||
| A Demurrer is neither a form of plea or motion, but a formal request of suspension of court proceedings (suspension of hostilities) until the merits of the written demurrer may be examined. | ||
|
||
| Canon 2840 | ||
| Excluding evidence of public records that contradict the face of the complaint or material facts not subject to challenge, a valid Demurrer does not challenge the alleged facts in the complaint, nor contest the ultimate merits of a suit. | ||
|
||
| Canon 2841 | ||
| There are four (4) forms of Demurrer being General, Special, to Evidence and to Interrogatories: | ||
| (i) A General Demurrer is a demurrer which objects to a complaint in its substance in failure to state facts sufficient to constitute a cause of action and/or any claimed lack of subject matter jurisdiction; and | ||
| (ii) A Special Demurrer is a demurrer which objects to a complaint in its form in which essential errors of fact, scrivener errors, errors contradicting the public record and other “special” examples may be shown and/or claimed lack of personal or territorial jurisdiction; and | ||
| (iii) A Demurrer to Evidence is a demurrer which objects to at the conclusion of the evidence presented for a complaint on the ground of insufficient evidence, faulty or incorrectly presented evidence or other technical errors in material presentation; and | ||
| (iv) A Demurrer to Interrogatories is a demurrer of answers offered by a witness as evidence for refusing to answer one or more anticipated questions expected to be asked of them. | ||
|
||
| Canon 2842 | ||
| In matters of criminal law, a General or Special Demurrer may not be requested and filed until after the presentation of any indictment. In such matters, the counsel or Pro Se will respond to the question of plea that a demurrer is requested and that leave from the court is sought to prepare the motion or if the paperwork is already completed, the prepared motion is then handed to the clerk to be filed. | ||
|
||
| Canon 2843 | ||
| In civil matters where a complaint is administratively filed, a general or special demurrer may also be administratively filed in response prior to any hearing. | ||
|
||
| Canon 2844 | ||
| A presiding judge or magistrate cannot deny the right of demurrer. A judge that denies demurrer outright, or denies leave to prepare a motion automatically provides evidence of some predisposed bias and grounds for an immediate motion of recusal (removal) of the judge or magistrate from the matter. | ||
|
||
Copyright © ab initio One-Heaven.Org. All Rights reserved. |
||