« PreviousContinue »
must transmit to the court in which the application 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 argument of the application, upon reasonable notice to the adverse party.
§ 1094. (§ 476.) If no answer be made, the case 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 ten hundred and eighty-eight, 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 must proceed to hear, or fix a day for hearing, the argument of the case.
§ 1095. (§ 477.) If judgment be given for the applicant, he may recover the damages which he has 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 must also be awarded without delay.
§ 1096. (§ 478.) The writ must be served in the same manner as a summons in a civil action, except when otherwise expressly directed by order of the court. Service upon a majority of the members of any board or body, is service upon the board or body, whether at the time of the service the board or body was in session or not.
§ 1097. (§ 479.) When a peremptory mandate has been issued and directed to any inferior tribunal, corporation, board or person, if it appear to the court that any member of such tribunal, corporation or board, 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 make any orders necessary and proper for the complete enforcement of the writ. If a fine be imposed upon a judge or officer who draws a salary from the state or county, a certified copy of the order must be forwarded to the controller or county treasurer, as the case may be, and the amount thereof may be retained from the salary of such judge or officer.
Stat. 1851, 126, added the words "such judge or officer for his wilful disobedience shall also be deemed guilty of a misdemeanor in office." 1 Cal. 188: 16 Cal. 11.
Writ may be alte native or peremptory. Form of.
Certain provisions of the preceding chapter applicable.
§ 1102. (N. S.) The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tri bunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person.
§ 1103. (N. S.) It may be issued by any court except police or justices' courts, to an inferior tribunal or to a corporation, board or person, in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. It is issued upon affidavit, on the application of the person beneficially interested.
30 Cal. 214.
As to jurisdiction, see $$ 43, 57 and 85.
§ 1104. (N. S.) The writ must be either alternative or peremptory. The alternative writ must state generally the allegation against the party to whom it is directed, and command such party to desist or refrain from further proceedings in the action or matter specified therein, until the further order of the court from which it is issued, and to show cause before such court, at a specified time and place, why such party should not be absolutely restrained from any further proceedings in such action or matter. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he should not be absolutely restrained, etc., must be omitted and a return day inserted.
§ 1105. (N. S.) The provisions of the preceeding chapter, except of the four first sections thereof, apply to this proceeding.
C. C. P.-31
WRITS OF REVIEW, MANDATE AND PROHIBITION MAY ISSUE AND BE HEARD AT CHAMBERS.
SECTION 1108. Writs of review, mandate and prohibition may issue and be heard at chambers.
◊ 1108. (§ 653.) Writs of review, mandate and prohibition may be issued by any three of the justices of the supreme court, or by any district or county judge, in vacation, and may, in the discretion of the justices or judge issuing the writ, be made returnable and a hearing thereon be had in vacation.
Vide $$ 143 and 165.
Stat. 1851, 72, § 65, read: "Writs of certiorari and mandamus, may be issued in the cases prescribed by said act, by a judge of the supreme court, district court, or county court, in vacations, and may in the discretion of the judge issuing the writ, be made returnable, and a hearing may be had on the return thereof in the vacation"
RULES OF PRACTICE AND APPEALS.
SECTION 1109. Certain provisions of part two applicable. 1110. Same.
§ 1109. Except as otherwise provided in this title the provisions of Part II, of this code, are applicable to, and constitute the rules of practice in the proceedings mentioned in this title.
1110. The provisions of Part II, of this code, relative to new trials and appeals, except in so far as they are inconsistent with the provisions of this title, apply to the proceedings mentioned in this title.
OF CONTESTING CERTAIN ELECTIONS.
SECTION 1111. Who may contest, and grounds of contest
1113. When not to.
1114. Illegal votes, when not to vitiate election.
1115. Proceedings on contest.
1116. Statement of cause of contest. When based on re ception of illegal votes, contestant to deliver to respondent a list of votes claimed to be illegal. 1117. Statement of cause of contest; want of form not to
1118. County judge to hold special term for trial of con-
1119. Clerk to issue citation to respondent.
1127. When election void and office vacant.
Any elector of a county, 76city and county, city, or of any political subdivision of either76, may contest the right of any person declared elected to an office to be exercised therein, for any of the following causes:
1. For malconduct on the part of the board of judges, or any member thereof;
2. When the person whose right to the office is contested was not, at the time of the election, eligible to such office;
3. When the person whose right is contested has given to any elector or inspector, judge or clerk of the election, any bribe or reward, or has offered any such bribe or reward for the purpose of procuring his election, or has committed any other offense against the elective franchise defined in title four, part one, of the penal code;
4. On account of illegal votes. [Approved March 11, 1876.]