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Writ of review defined.

When and by what Courts

granted.

Application for,

CHAPTER I.

WRIT OF REVIEW.

SECTION 1067. Writ of review defined.

1068. When and by what Courts granted.

1069. Application for, how made.

1070. The writ to be directed to the inferior tribunal, etc. 1071. Contents of the writ.

1072. Proceedings in inferior Court may be stayed, or not. 1073. Service of the writ.

1074. The review under the writ, extent of.

1075. A defective return of the writ may be perfected.

Hearing and judgment.

1076. Copy of judgment must be sent to the inferior tribunal. 1077. Judgment rolls.

1067. (§ 455.) The writ of certiorari must hereafter be known as the writ of review.

1068. (§ 456.) 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.

1069. (§ 457.) The application must be made on how made. 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.

The writ to be directed

to tho

inferior tribunal, etc.

1070. (§ 458.) 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.

the writ.

1071. (§ 459.) The writ of review must command Contents of 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 meantime, to desist from further proceedings in the matter to be reviewed.

ings in

inferior

Court may be stayed,

or not.

1072. (§ 460.) If a stay of proceedings be not Proceedintended, 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.

the writ.

1073. (§ 461.) The writ must be served in the Service of same manner as a summons in civil action, except when otherwise expressly directed by the Court.

1074. (§ 462.) 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.

The review

under the

writ, extent

of.

return of

may be

1075. (§ 463.) If the return of the writ be defect- A defectivo ive, the Court may order a further return to be made. the writ When a full return has been made, the Court must perfected. hear the parties, or such of them as may attend for that purpose, and may thereupon give judgment, either Hearing affirming or annulling, or modifying the proceedings judgment. below.

and

judgment

sent to the

1076. (§ 464.) A copy of the judgment, signed Copy of the by the Clerk, must be transmitted to the inferior must be tribunal, Board, or officer having the custody of the inferior record or proceeding certified up.

tribunal.

Judgment rolls.

1077. (§ 465.) A copy of the judgment, signed by the Clerk, entered upon or attached to the writ and return, constitute the judgment roll.

Mandate defined.

When and by what Court issued.

CHAPTER II.

WRIT OF MANDATE.

SECTION 1084. Mandate defined.

1085. When and by what Court issued.

1086. Writ, when and upon what to issue.

1087. Must be either alternative or peremptory. Substance. 1088. If the application be without notice, the alternative writ may issue; otherwise, the peremptory. Notice and default.

1089. The adverse party may answer under oath.

1090. If an essential question of fact is raised, the Court

may order a jury trial.

1091. The applicant may demur to the answer, or countervail it by proof.

1092. Motion for new trial, where made.

1093. The Clerk must transmit the verdict to the Court where the motion is pending, after which the hearing shall be had on motion.

1094. If no answer be made, or if the answer raise no material issue of fact, the hearing must be before

the Court.

1095. If the applicant succeed, he may have damages, costs, and a peremptory mandate.

1096. Service of the writ.

1097. Penalty for disobedience to the writ.

1084. (§ 466.) The writ of mandamus must hereafter be designated the writ of mandate.

1085. (§ 467.) 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.

and upon

to

1086. (§ 468.) The writ must be issued in all Writ, when cases where there is not a plain, speedy, and adequate what remedy, in the ordinary course of law. It must be issued upon affidavit, on the application of the party beneficially interested.

be either

or peremp

1087. (§ 469.) The writ may be either alterna- Writ must tive or peremptory. The alternative writ must state alternative generally the allegation against the party to whom it tory. is directed, and command such party, immediately after the receipt of the writ, or at some other specified time, to do the act required to be performed, or to show cause before the Court, at a specified time and place, why he has not done so. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he has not done as commanded must be omitted, and a return day inserted.

If the

application

notice, the

be without alternative issue; othperemptory

writ may

erwise, the

1088. (§ 470.) When the application to the Court is made without notice to the adverse party, and the writ be allowed, the alternative must be first issued; but if the application be upon due notice, and the writ be allowed, the peremptory may be issued in the first instance. The notice of the application, when given, must be at least ten days. The writ cannot be Notice and granted by default. The case must be heard by the Court, whether the adverse party appear or not.

1089. (§ 471.) On the return of the alternative, or the day on which the application for the writ is noticed, the party on whom the writ or notice has been served may show cause by answer, under oath, made in the same manner as an answer to a complaint in a civil action.

default.

The admay answer

verse party under oath.

If an essential question

of fact is

Court may order a jury trial.

1090. (§ 472.) If an answer be made, which raises a question as to a matter of fact essential to the raised, the determination of the motion, and affecting the substantial rights of the parties, and upon the supposed truth of the allegation of which the application for the writ is based, the Court may, in its discretion, order the question to be tried before a jury, and postpone the argument until such trial can be had, and the verdict. certified to the Court. The question to be tried must be distinctly stated in the order for trial, and the county must be designated in which the same shall be had. The order may also direct the jury to assess any damages which the applicant may have sustained, in case they find for him.

The applicant

may demur

to the

1091. (§ 473.) On the trial, the applicant is not precluded by the answer from any valid objection to answer, or its sufficiency, and may countervail it by proof either it by proof. in direct denial or by way of avoidance.

countervail

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The Clerk must transmit

the verdict

1092. The motion for new trial must be made in the Court in which the issue of fact is tried.

1093. (§ 475.) If no notice of a motion for a new trial be given, or if given, the motion be denied, the to the Court Clerk, within five days after rendition of the verdict or denial of the motion, must transmit to the Court in the hearing which the application for the writ is pending, a certi

where the

motion is pending, after which

shall be

had on motion.

If no answer be

made, or if

fied copy of the verdict attached to the order of trial; after which either party may bring on the argument of the application, upon reasonable notice to the adverse party.

1094. (§ 476.) If no answer be made, the case the answer must be heard on the papers of the applicant. If an answer be made which does not raise a question such as is mentioned in Section 1088, but only such matters

raise no

material issue of

fact, the hearing must be

before the Court.

as may be explained or avoided by a reply, the Court

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