PART III. OF SPECIAL PROCEEDINGS OF A CIVIL NATURE. Preliminary Provisions, §§ 1063, 1064. Title I. Of Writs of Review, Mandate and Prohibition, §§ 1067-1110. II. Of Contesting Certain Elections, §§ 1111-1127. IV. Of the Enforcement of Liens, §§ 1180-1207. V. Of Contempts, §§ 1209-1222. VI. Of the Voluntary Dissolution of Corporations, VII. Of Eminent Domain, §§ 1237-1264. X. Of Arbitrations, §§ 1281-1290. XI. XII. XIII. Of Proceedings in Probate Courts, §§ 1294-1810. Of Proceedings in Insolvency, § 1822. PRELIMINARY PROVISIONS. 1063. Parties, how designated. § 1064. Judgment and order same meaning as in civil actions. § 1063. Parties, how designated. The party prosecuting a special proceeding may be known as the plaintiff, and the adverse party as the defendant. En. March 11, 1872. Cal.Rep.Cit. 92, 248. Plaintiff and defendant: Ante, sec. 308. § 1064. Judgment and order same meaning as in civil actions. A judgment in a special proceeding is the final determination of the rights of the parties therein. The definitions of a motion and an order in a civil action are applicable to similar acts in a special proceeding. En. March 11, 1872. Judgment, definition of: Ante, sec. 577. TITLE I. OF WRITS OF REVIEW, MANDATE AND PROHIBITION. Chapter I. Writ of Review, §§ 1067-1077. § 1067. § 1068. § 1069. § 1070. § 1071. 1072. 1073. § 1074. 1075. 1076. 1077. II. Writ of Mandate, §§ 1084-1097. III. Writ of Prohibition, §§ 1102-1105. IV. Writs of Review, Mandate, and Prohibition CHAPTER I. WRIT OF REVIEW. Writ of review defined. When and by what courts granted. The writ to be directed to the inferior tribunal, etc. Proceedings in inferior court may be stayed, or not. Service of the writ. The review under the writ, extent of. A defective return of the writ may be perfected. Hear- Copy of judgment must be sent to the inferior tribunal. § 1067. Writ of review defined. The writ of certiorari may be denominated the writ of review. 1872. Am'd. 1873-4, 345. Prac. Act, sec. 455. En. April 29, 1851. En. March 11, § 1068. When and by what courts granted. A writ of review may be granted by any court, except a police or justice's court, when an inferior tribunal, board, or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy. En. March 11, 1872. Cal.Rep.Cit. 53, 393; 53, 550; 54, 376; 54, 604; 58, 361; 59, 701; 60, 290; 65, 189; 71, 323; 74, 219; 84, 644; 96, 119; 97, 326; 101, 17; 108, 305; 109, 526; 110, 57; 113, 668; 120, 514; 124, 277; 127, 419; 131, 280; 138, 429. Prac. Act, sec. 456. Cal.Rep.Cit. 3, 249; 25, 96; 29, 635; 47, 605. En. April 29, 1851. 5, 478; 14, 496; 16, 213; 42, 254; 42, 255; 43, 26; 21, 169; 43, 367; Certiorari, extent of review on: Post, sec. 1074. Supreme court is always open for issuing this writ: Ante, sec. 47. Court commissioners, power to hear and determine ex parte motions for writ: Ante, sec. 259. Returnable-Writ may be made returnable at any time: Post, sec. 1108. See post, sec. 1070. § 1069. Application for, how made. The application must be made on affidavit by the party beneficially interested, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice. En. March 11, 1872. Cal.Rep.Cit. 53, 392; 71, 237; 87, 175; 131, 365; 136, 687. Issuance: See supreme court rule 26. § 1070. The writ to be directed to the inferior tribunal, etc. The writ may be directed to the inferior tribunal, board, or officer, or to any other person having the custody of the record or proceedings to be certified. When directed to a tribunal, the clerk, if there be one, must return the writ with the transcript required. En. March 11, 1872. Cal.Rep.Cit. 61, 627; 75, 372; 113, 671. Prac. Act, sec. 458. En. April 29, 1851. § 1071. Contents of the writ. The writ of review must command the party to whom it is directed to certify fully to the court issuing the writ, at a specified time and place, a transcript of the record and proceedings (describing or referring to them with convenient certainty), that the same may be reviewed by the court; and requiring the party, in the mean time, to desist from further proceedings in the matter to be reviewed. En. March 11, 1872. Cal.Rep.Cit. 54, 322; 61, 55. Prac. Act, sec. 459. En. April 29, 1851. § 1072. Proceedings in inferior court may be stayed, or not. If a stay of proceedings be not intended, the words requiring the stay must be omitted from the writ; these words may be inserted or omitted, in the sound discretion of the court, but if omitted, the power of the inferior court or officer is not suspended or the proceedings stayed. En. March 11, 1872. Prac. Act, sec. 460. En. April 29, 1851. § 1073. Service of the writ. The writ must be served in the same manner as a summons in civil action, except when otherwise expressly directed by the court. En. March 11, 1872. Prac. Act, sec. 461. Service of writ, on En. April 29, 1851. public tribunal, etc., and proof of same: Supreme court rule 28. Service of summons: Ante, secs. 410 et seq. § 1074. The review under the writ, extent of. The review upon this writ cannot be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer. En. March 11, 1872. Cal.Rep.Cit. 54, 286; 97, 326; 111, 273; 113, 668; 136, 367. Prac. Act, sec. 462. En. April 29, 1851. Cal.Rep.Cit. 25, 96; 29, 635; 43, 367. § 1075. A defective return of the writ may be perfected. Hearing and judgment. If the return of the writ be defective, the court may order a further return to be made. When a full return has been made, the court must hear the parties, or such of them as may attend for that purpose, and may thereupon give judgment, either affirming, or annulling, or modifying the proceedings below. En. March 11, 1872. Cal.Rep.Cit. 56, 614. Prac. Act, sec. 463. En. April 29, 1851. § 1076. Copy of judgment must be sent to the inferior tribunal. A copy of the judgment, signed by the clerk, must be transmitted to the inferior tribunal, board, or officer having the custody of the record or proceeding certified up. En. March 11, 1872. Prac. Act, sec. 464. En. April 29, 1851. § 1077. Judgment rolls. A copy of the judgment, signed by the clerk, entered upon or attached to the writ and return, constitute the judgment roll. En. March 11, 1872. Cal.Rep.Cit. 47, 605; 61, 55; 115, 85. Prac. Act, sec. 465. En. April 29, 1851. Must be either alternative or peremptory. Substance. If the application be without notice, the alternative writ The adverse party may answer under oath. Notice and de If an essential question of fact is raised, the court may order a jury trial. § 1085. § 1086. Writ, when and upon what to issue. § 1087. § 1088. § 1089. § 1090. § 1091. § 1092. § 1093. § 1094. § 1095. § 1096. 1097. The applicant may demur to the answer or countervail it by proof. Motion for new trial, where made. The clerk must transmit the verdict to the court where the motion is pending, after which the hearing shall be had on motion. If no answer be made, or if the answer raise no material issue of fact, the hearing must be before the court. If the applicant succeed, he may have damages, costs, and a peremptory mandate. Service of the writ. Penalty for disobedience to the writ. § 1084. Mandate defined. The writ of mandamus may be denominated a writ of mandate. En. March 11, 1872. Am'd. 1873-4, 345. Prac. Act, sec. 466. En. April 29, 1851. $1085. When and by what court issued. It may be issued by any court, except a justice's or police court, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law, specially enjoins, as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person. En. March 11, 1872. Cal. Rep.Cit. 52, 9: 66, 659; 73, 58; 55, 329; 57, 76; 66, 595; 66, 633; 91, 485; 93, 88; 105, 154; |
