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1279. Writ, how allowed.
1280. If return defective, how return ordered.
§ 1271. The writ of certiorari, whether at common law or by statute, shall hereafter be known as the writ of review of inferior jurisdictions.
§ 1272. The writ of review must command the defendant to certify fully to the supreme court, at a specified time and place, and annex to the writ, a transscript of the record and proceedings, (describing or referring to them, with convenient certainty,) that the same may be reviewed by the supreme court; and requiring the party, in the mean time, to desist from further proceedings in the matter to be reviewed.
§ 1273. If a stay of proceedings be not intended, the words requiring the stay, may be omitted from the writ. These words may be inserted, or omitted, in the sound discretion of the court.
§ 1274. The effect of the writ is to remove, not the record, but the transcript thereof; therefore, the power
of the inferior court or officer is not suspended, nor the proceedings stayed, unless an order to that effect be inserted in the writ.
§ 1275. The writ may be granted, wherever specially authorised by this code, and also in all cases where an inferior tribunal, board, or officer, exercising judicial functions, is alleged to have exceeded the jurisdiction of such tribunal, board, or officer; and where there is no appeal, nor, in the judgment of the court, any other plain, speedy and adequate remedy.
§ 1276. Except where otherwise expressly provided by this code or another statute, 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.
§ 1277. The writ may be directed to such tribunal, board, or officer, or to any other person having the custody of the record or proceedings to be certified.
§ 1278. The motion for the writ must be made upon affidavit, and the court may require a notice of the application to be given to the adverse party, or may grant an order to shew cause why it should not be allowed, or may grant the writ without notice.
§ 1279. The allowance of the writ must be endorsed thereon, signed by the judge granting it, and the writ must be served in the same manner, as a summons in
a civil action, except where otherwise expressly provided.
§ 1280. If the return to the writ be defective, the court may order a further return to be made. When a full return has been made, the court must proceed to hear the parties, or such of them as may attend for that purpose, and may thereupon give judgment, either affirming or annulling the proceedings below.
§ 1281. A copy of the judgment, signed by the clerk, entered upon, or attached to, the writ and return, constitute the judgment roll. From the judgment, an appeal may be taken to the general term, and thence to the court of appeals, in the same manner and upon the same terms, as from a judgment in a civil action.
THE WRIT OF MANDATE.
SECTION 1282. Writ of mandate defined.
1283. To whom and for what issued.
1284. Not issued, when there is an ordinary remedy.
1285. Writ alternative or peremptory.
1286. When peremptory writ allowed.
1287. Proceedings as in case of writ of review.
§ 1282. The writ, heretofore known as the writ of mandamus, shall be hereafter denominated the writ of
mandate. Such writ is defined and regulated as in this chapter prescribed.
§ 1283. It may be issued 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. But though it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it cannot control judicial discretion.
See 2 R. S., 586, § 54-60.
1284. This writ ought not to be issued, in any case where there is a plain, speedy and adequate remedy, in the ordinary course of the law. It is issued, on the information of the party beneficially interested.
§ 1285. The writ is either alternative or peremptory. The alternative writ mnst state concisely the facts showing the obligation of the defendant to perform the act, and his omission to perform it, and command him, that immediately after the receipt of the writ, or at some other specified time, he do the act required to be performed, or show cause before the supreme court, at a specified time and place, why he has not done so; and that he then and there return the writ, with his certificate of having done as he is commanded. The peremptory writ must be in a similar form., except that
the words requiring the defendant to show cause why he has not done as commanded, must be omitted.
§ 1286. When the right to require the performancc of the act is clear, and it is apparent, that no valid excause can be given for not performing it, a peremptory mandate may be allowed in the first instance. In all other cases, the alternative writ must be first issued.
1287. The motion for the writ, the allowance, and the service thereof, and the enforcement of obedience thereto, must be in the same manner, as in case of the writ of review.
§ 1288. On the return day of the alternative writ, or such further day as the court may allow, the party, on whom the writ shall have been served, may show cause, by answer made, in the same manner as an answer to a complaint in a civil action.
§ 1289. If no answer be made, a peremptory mandate must be allowed against the defendant. If an answer be made, containing new matter, the same shall not in any respect conclude the plaintiff, who may on the trial or other proceedings avail himself of any valid objection to its sufficiency, or may countervail it by proof, either in direct denial or by way of avoidance.
§ 1290. No other pleading, or written allegation, is allowed than the writ and answer. These are the pleadings in the case, and have the same effect, and