Slike strani

The like.

How served.

How far review to extend.

time and place, and annex to the writ 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.

Sec. 460. If a stay of proceedings be not intended, the words requiring the stay shall 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 shall not be suspended, nor the proceedings stayed.

Sec. 461. The writ shall be served in the same manner as a summons in civil action, except when otherwise expressly directed by the court.

Sec. 462. The review upon this writ shall not be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer.

Sec. 463. If the return to the writ be defective, the court may orJudgment on der a further return to be made. When a full return has been made,

the court shall proceed to 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. Copy of judgment

Sec. 464. A copy of the judgment, signed by the clerk, shall be to court below.

transmitted to the inferior tribunal, board, or officer having the cus

tody of the record or proceeding certified up. Judgment roll. Sec. 465. A copy of the judgment, signed by the clerk, entered

upon, or attached to, the writ and return, shall constitute the judg

ment roll. If the proceeding be had in any other than the supreme Appeal from court, an appeal may be taken from the judgment in the same manjudgment.


upon the same terms, as from a judgment in a civil action.

Defective return.


to be transmitted


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THE WRIT OF MANDATE, OR MANDAMUS. SECTION 466. The writ of mandamus may be denominated the writ of mandate.

Sec. 467. It may be issued by any court in this state, except a justice's, recorder's, or mayor's court, to any inferior tribunal, corpor

on, 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 enjoy. ment 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.

What to state.

and when

to issue in first

Sec. 468. This writ shall be issued in all cases where there is the like. not a plain, speedy, and adequate remedy, in the ordinary course of law. It shall be issued upon affidavit, on the application of the party beneficially interested.

Sec. 469. The writ shall be either alternative or peremptory; the To be either alternative writ shall state generally the allegation against the party peremptory to whom it 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 shall be in a similar form, except that the words requiring the party to show cause why he has not done as commanded shall be omitted, and a return day shall be inserted.

Sec. 470. When the application to the court is made without notice When alternative to the adverse party, and the writ be allowed, the alternative shall be peremptory writ first issued; but if the application be upon due notice, and the writ instance. be 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.

Sec. 471. On the return day of the alternative, or the day on which showing cause the application of the writ is noticed, or such further day as the court against alternamay allow, the party ou 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.

Sec. 472. If an answer be made, which raises a question as to a Questions of matter of fact essential to the determination of the motion, and affect- answer, how

fact raised by ing the substantial rights of the parties, and upon the supposed truth disposed of. 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 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.

Sec. 473. On the trial, the applicant shall not be precluded by the Sufficiency of answer of any valid objection to its sufficiency, and may countervail objected to on it by proof either in direct denial or by way of avoidance.

Sec. 474. If either party be dissatisfied with the verdict of the New trial may jury, he may move for a new trial upon a statement prepared as pro- in what cases. vided in section 195. The motion for a new trial may, upon reason

tive writ.

the trial.

to court in

tion for writ is

where no

able notice, be brought on before the judge of the court in which the cause was tried, either in term or vacation. If a new trial be granted, the jury shall, within five days thereafter, unless the parties agree on a longer time, be summoned to try the issue. After a second ver

dict in favor of the same party, a new trial shall not be had. Copy of verdict Sec. 475. If no notice for a new trial be given, or if given, be to be transmitted

denied, the clerk, within five days after the rendition of the verdict or which applica

denial of the motion, shall transmit to the court in which the applicapending

tion for the writ is pending, a certified copy of the verdict attached to the order of trial; after which either party may bring on the argu

ment of the application, upon reasonable notice to the adverse party. Proceedings Sec. 476. If no answer be made, the case shall be heard on the answer is made. papers of the applicant. If an answer be made which does not raise a

question such as is mentioned in section 472, 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 pro

ceed to hear, or fix a day for hearing the argument of the case. Damages where Sec. 477. If judgment be given for the applicant, he shall recover judgment for applicant. the damages which he shall have sustained as found by the jury, or

as may be determined by the court, or referees, upon a reference to be ordered, together with costs; and for such damages and costs, an execution may issue; and a peremptory mandate shall also be awarded without delay.

SEC. 478. The writ shall be served in the same manner as a summons in a civil action, except when otherwise expressly directed by

order of the court. Disobeying writ. Sec. 479. When a peremptory mandate has been issued and direct

ed to any inferior tribunal, corporation, board, or person, if it appear
to the court that any member of such tribunal, corporation,
or such person upon whom the writ has been personally served, has,
without just excuse, refused or neglected to obey the same, the court
may, upon motion, impose a fine not exceeding one thousand dollars.
In case of persistence in a refusal of obedience, the court may order
the party to be imprisoned for a period not exceeding three months,
and may take any orders necessary and proper for the complete en-
forcement of the writ. If a fine be imposed upon a judge
who draws a salary from the state, or county, a certified copy of the
order shall be forwarded to the comptroller, or county treasurer, as
the case may be, and the amount thereof may be retained from the
salary of such judge or officer. Such judge or officer for his wilful
disobedience shall also be deemed guilty of a misdemeanor in office.

Service of writ.

or board,

or officer




SECTION 480. The following acts or omissions shall be deemed con- What to be tempts :

1st. Disorderly, contemptuous, or insolent behavior towards the judge whilst holding court, or engaged in his judicial duties at chambers, or towards referees or arbitrators whilst sitting on a reference or arbitration, tending to interrupt the due course of a trial, reference, or arbitration, or other judicial proceeding :

2d. A breach of the peace, boisterous conduct, or violent disturbance in presence of the court or its immediate vicinity, tending to interrupt the due course of a trial, or other judicial proceeding :

3d. Disobedience or resistance to any lawful writ, order, rule, or process, issued by the court, or judge at chambers :

4th. Disobedience of a subpæna duly served, or refusing to be sworn or answer as a witness :

5th. Rescuing any person or property in the custody of any officer, by virtue of an order of process of such court or judge at chambers.

Sec. 481. When a contempt is committed in the immediate view Contempt, how and presence of the court, or judge at chambers, it may be punished summarily; for which an order shall be made reciting the facts as occurring in such immediate view and presence, adjudging that the person proceeded against is thereby guilty of a contempt, and that he be punished as therein prescribed. When the contempt is not committed in the immediate view and presence of the court, or judge at chambers, an affidavit shall be presented to the court or judge, of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators.

Sec. 482. When the contempt is not committed in the immediate The like. view and presence of the court or judge, a warrant of attachment may be issued to bring the person charged to answer, or without a previous arrest, a warrant of commitment may upon notice, or upon an order to show cause, be granted; and no warrant of commitment shall be issued without such previous attachment to answer, or such notice or order to show cause.

Sec. 483. Whenever a warrant of attachment is issued pursuant Warrant to state to this chapter, the court or judge shall direct whether the person party to be charged may be let to bail for his appearance upon the warrant, or detained in custody without bail; and if he may be bailed, the amount in which he may be let to bail. The directions given in this respect shall be specified in the warrant, or endorsed thereon.

whether or not

admitted to bail.

party arrested on bail.

be returned.


Punishment for

Duty of sheriff Sec. 484. Upon executing the warrant of attachment, the sheriff on executing writ.

shall keep the person in custody, bring him before the court or judge, and detain him until an order be made in the premises, unless the person arrested entitle himself to be discharged, as provided in the

next section. Discharging Sec. 485. When a direction to let the person arrested to bail is

contained in the warrant of attachment, or endorsed thereon, he shall be discharged from the arrest, upon executing and delivering to the officer, at any time before the return day of the warrant, a written undertaking, with two sufficient sureties, to the effect that the person arrested will appear on the return of the warrant, and abide the order of the court or judge thereupon; or they will pay as may be di

rected, the sum specified in the warrant. Warrant, etc., to Sec. 486. The officer shall return the warrant of arrest and the

undertaking, if any, received by him from the person arrested, by the

return day specified therein. Charge to be Sec. 487. When the person arrested has been brought up or apinvestigated.

peared, the court or judge shall proceed to investigate the charge, and shall hear any answer which the person arrested may make to the and

may examine witnesses for or against him, for which an adjournment may be had from time to time, if necessary.

Sec. 488. Upon the answer and evidence taken, the court or judge contempt.

shall determine whether the person proceeded against is guilty of the contempt charged, and if it be adjudged that he is guilty of the contempt, a fine may be imposed on him not exceeding five hundred dol

lars, or he may be imprisoned not exceeding five days, or both. When contempt Sec. 489. When the contempt consists in the omission to perform omitting an act which is yet in the power of the person to perform, he may

be imprisoned until he have performed it, and in that case the act

shall be specified in the warrant of commitment. Proceedings Sec. 490. Persons proceeded against according to the provisions

of this chapter, shall also be liable to indictment for the same misindictment.

conduct, if it be an indictable offence; but the court before which a conviction is had on the indictment, in passing sentence, shall take

into consideration the punishment before inflicted. Proceeding

Sec. 491. When the warrant of arrest has been returned served, where party arrested does if the person arrested do not appear on the return day, the court or not appear on return day of

judge may issue another warrant of arrest, or may order the undertaking to be prosecuted, or both. If the undertaking be prosecuted, the measure of damages in the action shall be the extent of the loss or injury sustained by the aggrieved party, by reason of the misconduct for which the warrant was issued, and the costs of the proceeding

consists in


any act.

under this act no bar to


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