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Flanigan v. Burritt

April 1918

P. L. FLANIGAN, RESPONDENT, V. CHARLES H. BURRITT, APPELLANT.


Appeal from Second Judicial District Court, Washoe County; R. C. Stoddard, Judge.

Mack & Green, for Appellant.

James T. Boyd, for Respondent.

By the Court, McCarran, C. J.:

This action was instituted in the district court by and on behalf of respondent for a peremptory writ of mandamus. On the day designated for the return, the appellant here appeared and filed a demurrer to the complaint. On the hearing the court made an order overruling the demurrer. Immediately after the entry of the order, and in open court, it appears that appellant attempted to file an answer to the merits of the complaint or petition for mandamus. Respondent objected to the filing of the instrument, and the court sustained the objection, and refused to permit appellant to file any answer or take further steps in the proceedings, and

[41 Nev. 504, Page 506]

then and there directed the clerk to enter judgment for the respondent, plaintiff and petitioner in the court below, in accordance with the relief prayed for. The refusal of the court to permit the filing of an answer to the petition for mandamus is assigned as error, and together with other assignments comes here in the specification of errors. We shall conclude the matter with a consideration of this assignment, inasmuch as we deem the action of the trial court in refusing to permit appellant to file an answer to be error.

Chapter 73 of our civil practice act, being section 752 to section 771 of the act, inclusive (Rev. Laws, 5694-5713) is devoted entirely to proceedings and practice in mandamus. The statute declares the writ of mandamus may be denominated a writ of mandate. Section 753 designates in what cases the writ may issue.

Section 756 prescribes:

“When the application to the court or district judge is made without notice to the adverse party, and the writ is allowed, the alternative shall be first issued; but if the application be upon due notice, and the writ is allowed, the peremptory may be issued in the first instance. The notice of the application, when given, shall be at least ten days. The writ shall not be granted by default. The case shall be heard by the court whether the adverse party appear or not.”

Section 757 prescribes:

“On the return day of the alternative, or the day on which the application of the writ is noticed, or such further day as the court or district judge issuing the writ may allow, the party on whom the writ or notice shall have been served may show cause by answer under oath, made in the same manner as an answer to a complaint in a civil action.”

Section 758 provides:

“If an answer is made, which raises a question as to matter of fact essential to 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 a writ is based, the court

[41 Nev. 504, Page 507]

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 shall be distinctly stated in the order for trial, and the county shall 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.”

Section 762 provides:

“If no answer be made, the case shall 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 758, but only such matters as may be explained or avoided by a reply, the court may, in its discretion, grant time for replying. If the answer, or answer and reply, raise only questions of law, or put in issue immaterial statements, not affecting the substantial rights of the parties, the court shall proceed to hear, or fix a day for hearing, the argument of the case.”

Section 770 of the civil practice act provides:

“Except as otherwise provided in the three chapters next preceding [chapter 72, Certiorari; chapter 73, Mandamus; chapter 74, Prohibition], the provisions of this code relative to civil actions in the district courts are applicable to and constitute the rules of practice in the proceedings mentioned in those chapters.”

It will be seen that the proceedings in mandamus constitute a part of our civil practice act. Thus the whole proceeding, in so far as there are statutory provisions, is removed from the rule of practice known to the common law and takes its initiatory and every successive step directly from statutory mandate and prescription.

In the case of State of Nevada ex rel. Curtis v. McCullough, 3 Nev. 202, this court took cognizance of the civil practice act as being applicable to proceedings in mandamus. In the case of State of Nevada v. Gracey, 11 Nev. 223, ...


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