CHAPTER 69. MANDAMUS. 3640. Mandamus or writ of mandate. The writ of mandamus may be denominated a writ of mandate. [C. L. § 3729. Cal. C. Civ. P. 2 1084. 3641. Jurisdiction. When writ granted. It may be issued by the supreme court, or by a district court or a judge thereof, 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. [C. L. § 3730*. Cal. C. Civ. P. ? 1085*. Original jurisdiction in supreme and in district courts, Con. art. 8, secs. 4, 7. Lies to compel approval of an official bond by county treasurer. Brown v. Atkin, 1 U. 277. Supreme court may issue this writ. Maxwell v. Burton, 2 U. 595. Kendall v. Raybould, 13 U. 226; 44 P. 1034. Will not issue to undo an act already done. Maxwell v. Burton, 2 U. 595. Lies to compel a county court to pass upon and allow proper bills against the county where there was no statute allowing a county to be sued. Taylor v. County Court of S. L. Co., 2 U. 405. Lies to control the performance of a ministerial but not of a judicial act. Id. There is a wide difference in the office of the two writs, mandamus and certiorari; the former is one of mandate while the latter is one of review. Maxwell v. Burton, 2 U. 595. W. brought an action in mandamus against C., as auditor, to compel C. to issue to W. a warrant for salary as a public officer. C. had already issued a warrant for such salary to N. but N. at the time was not in possession of the office; held, that while quo warranto is the proper proceeding in which to try title to office, and that it cannot be tried in mandamus, yet in the case at bar quo warranto could not be resorted to. Williams v. Clayton, 6 U. 86; 21 P. 398. In the above action it was not a good objection to mandamus, that the salary had already been paid to a person now out of office, who had claimed such salary as an officer de facto, and that the title to the office being involved quo warranto was the proper remedy. Id. An alleged de facto officer out of office when the mandamus was instituted is not a necessary party, since payment to him is no defense. Id. Where defendant had been convicted of manslaughter, and upon his motion the trial court had indefinitely suspended sentence; held, in an action in mandamus against the successor of the trial judge to compel him to sentence defendant, that it would be presumed that the trial judge intended to impose only a nominal punishment, and that mandamus would not issue to compel his successor to sentence defendant. People v. Blackburn, 6 U. 347; 23 P. 759. Writ lies by judgment debtor to compel officer having levied execution upon more property than sufficient to satisfy judgment, to release excess. Metz v. Schweitzer, 8 U. 184; 30 P. 683. But not to compel outgoing sheriff to deliver to his successor property held under writ of attachment. Lynch v. Lee, 1 U. 271. Will issue to compel referee to settle statement on motion for new trial in a proper case. Whitmore v. Harris, 10 U. 259; 37 P. 464. Where no irregularity appears on the face of the returns, mandamus lies to compel a canvassing board to issue a certificate of election. Page v. Utah Com., 11 U. 119; 39 P. 499. Also to compel justice to try a case pending before him, of which he as a justice of the peace has jurisdiction notwithstanding the justice may have dismissed the case. People v. Van Tassell, 13 U. 9; 43 P. 625. To compel city auditor to draw warrant on treasurer to pay salary of a city officer. Kendall v. Raybould, 13 U. 226; 44 P. 1034. Mandamus is the appropriate remedy to restore a de jure officer to his office; and it is not necessary to resort to quo warianto even though the office be in the possession of another. Pratt v. Board of F. & P. Com'rs, decided June 14, 197. 3642. Issued when ordinary remedy inadequate. Affidavit. This writ must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. It must be issued upon affidavit, on the application of the party beneficially interested. Cal. C. Civ. P. 2 1086. Mandamus is a civil remedy having all the qualities and attributes of a civil action, and the sufficiency of the pleadings therein must be determined by the same rules as in civil actions. Lyman v. Martin, 2 U. 136. Chamberlain v. Warburton, 1 U. 267. [C. L. § 3731. It is no objection to an action in mandamus that the plaintiff had a plain, speedy, and adequate remedy against a third party. The remedy must be against the defendant in mandamus, and not against a third person. Williams v. Clayton, 6 U. 86; 21 P. 398. 3643. Alternative or peremptory. Forms. The writ may 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, 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. $3732. Cal. C. Civ. P. 1087. [C. L. 3644. Alternative issued without notice. Peremptory. Notice. Default. When the application to the court or judge 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 unless the court or judge shall order a shorter notice. The writ cannot be granted by default. The case must be heard by the court whether the adverse party appear or not. [C. L. § 3733*. Cal. C. Civ. P. ? 1088*. 3645. Answer. Verification. On the return day of the alternative, or the day on which the application for the writ is noticed, (or such further day as the court may allow,) 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. [C. L. § 3734. Cal. C. Civ. P. 2 1089*. 3646. Issue of fact may be tried by jury. Damages. If an answer be made, which raises a question as to a 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 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 if the proceedings are pending in the supreme court, the verdict certified to that court. The order for trial may also direct the jury to assess any damages which the applicant may have sustained, in case they find for him. If the order for trial is issued from the supreme court it must designate the county in which the same shall be had. [C. L. § 3735. Cal. C. Civ. P. ? 1090*. Special issues may be tried by jury, 2854. This section does not abrogate party's constitu tional right to a jury trial in a proper case. Chamberlain v. Warburton, 1 U. 267. 3647. Sufficiency of answer. Denial. Avoidance. On the trial the applicant is not precluded by the answer from any valid objection to its sufficiency, and may countervail it by proof, either in direct denial or by way of avoidance. [C. L. § 3736. Cal. C. Civ. P. 1091. 3648. Motion for new trial, where made. The motion for a new trial must be made in the court in which the issue of fact is tried. [C. L. § 3737. Cal. C. Civ. P. 2 1092. 3649. When application pending in supreme court, verdict transmitted. Argument. If no notice of a motion for a new trial be given, or, if given, the motion be denied, if the application for the writ is pending in the supreme court the clerk of the district court must within five days transmit to the supreme court a certified copy of the verdict attached to the order of trial; after which either party may bring on the argument of the application in the court in which it is pending upon reasonable notice to the adverse party. [C. L. § 3738. Cal. C. Civ. P. 2 1093*. 3650. Proceedings upon default, demurrer, or immaterial answer. If no answer be made the case must be heard on the papers of the applicant. If the answer raises only questions of law, or puts 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. [C. L. § 3739. Cal. C. Civ. P. ? 1094. 3651. Applicant may recover damages and costs. Execution. Peremptory writ. 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. [C. L. § 3740. Cal. C. Civ. P. ? 1095. Where issuance of mandamus to compel referee to settle statement on motion for a new trial was resisted by the successful party, costs will be awarded against him instead of the referee. Whitmore v. Harris, 10 U. 259; 37 P. 464. The writ must be served in the 3652. Writ served as a summons. 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. [C. L. § 3741. personal service. People, ex rel. Jones, v. House, Cal. C. Civ. P. ? 1096. Service on person not less than fourteen years of 4 U. 382; 10 P. 843. age at defendant's usual residence is equivalent to 3653. Refusal to obey writ. Fine. Imprisonment. 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, board, or 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 five hundred dollars. In case of persistence in a refusal of obedience, the court may order the party to be imprisoned until the writ is obeyed, and may make any orders necessary and proper for the complete enforcement of the writ. [C. L. § 3742. Cal. C. Civ. P. ? 1097*. CHAPTER 70. PROHIBITION. 3654. Prohibition counterpart of mandamus. Defined. The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person. [C. L. § 3743. Cal. C. Civ. P. ? 1102. A writ of prohibition could not issue at common law to arrest the doing of a ministerial act, but section 6 of the organic act, and in pursuance of that authority section 3743, C. L. 1888, has provided for the issuance of such writs to arrest the doing of ministerial acts. People, ex rel. Ducheneau, v. House, 4 U. 369; 10 P. 838. The issuance of a writ of prohibition by the supreme court of the territory of Utah, arresting proceedings already commenced in an inferior court, is in aid of the appellate jurisdiction of the supreme court and within its authority. See People v. Douglass, 5 U. 283; 14 P. 801. People, ex rel. Yearian, v. Spiers, 4 U. 385; 10 P. 609; 11 P. 509. When a justice of the peace has tried a case of which he had no jurisdiction, a writ of prohibition is a proper remedy, although an appeal would lie from the judgment. People, ex rel. Ducheneau, v. House, 4 U. 369; 10 P.838. People, ex rel. Yearian, v. Spiers, 4 U. 385; 10 P. 609; 11 P. 509. A writ of prohibition is properly issued from the supreme court to arrest the proceedings of an inferior tribunal when such tribunal is acting without, or in excess of its jurisdiction, and there is no plain, speedy, and adequate remedy in the ordinary course of law. People, ex rel. Yearian, v. Spiers, 4 U. 385; 10 P. 609; 11 P. 509. See People v. Douglass, 5 U. 283; 14 P. 801. Will issue to arrest proceedings of U. S. commissioners to punish for contempt acts which are not such. People v. Carrington, 5 U. 531; 17 P. 735. Where mandamus by plaintiff is pending to compel the issuance of a certificate of election, he cannot bring prohibition to prevent the issuance of a certificate to another person. Page v. Letcher, 11 U. 134; 39 P. 502. Writ will not issue when the thing sought to be prevented is already done. Brooks v. Warren, 5 U. 89; 12 P. 659. See Maxwell v. Burton, 2 U. 595. 3655. By whom and when issued. Affidavit. It may be issued by the supreme court, or by a district court or a judge thereof, 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. [C. L. $ 3744*. Cal. C. Civ. P. 2 1103*. Original jurisdiction in supreme and in district courts, Con. art. 8, secs. 4, 7. Writ lies to arrest all proceedings under void judgment of justice of the peace. In such case appeal is not an adequate remedy. People, ex rel. Ducheneau, v. House, 4 U. 369; 10 P. 838. Also where justice of the peace is proceeding to try cause of which he has no jurisdiction; in such case appeal is neither speedy nor adequate remedy. People, ex rel. Yearian, v. Spiers, 4 U. 385; 10 P. 609; 11 P. 509. Will not issue when there is a plain, speedy, and adequate remedy at law. Ducheneau v. Ireland, 5 U. 108; 13 P. 87. As appeal or certiorari. People v. Hills, 5 U. 410; 16 P. 405. Will not lie to restrain officer from enforcing an execution regular on its face, based on judgment, though really void. Remedy is motion to quash execution. Ducheneau v. Ireland, 5 U. 108; 13 P. 87. 3656. Alternative or peremptory. Forms of. 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 or judge 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. [C. L. § 3745. Cal. C. Civ. P. 1104. discretionary with the court. People, ex rel. Jones, Length of time between service and hearing is v. House, 4 U. 382; 10 P. 843. The 3657. Certain provisions of previous chapter applicable. provisions of sections thirty-six hundred and forty-four to thirty-six hundred and fifty-three, both inclusive, of the next preceding chapter, apply to the proceedings for writ of prohibition. [C. L. § 3746. Cal. C. Civ. P. 2 1105*. CHAPTER 71. GENERAL PROVISIONS AS TO CERTIORARI, MANDAMUS, AND PROHIBITION. 3658. Court may order return and hearing at any time. Writs of certiorari, mandamus, and prohibition, may, in the discretion of the court or judge issuing the writ, be made returnable and a hearing thereon be had at any time. [C. L. § 3747*. Cal. C. Civ. P. ? 1108*. Applied in Brown v. Atkin, 1 U. 277. 3659. Civil procedure applicable. Exception. Except as otherwise provided in the three chapters next preceding, the provisions of this code relative to civil actions in the district court are applicable to and constitute the rules of practice in the proceedings mentioned in those chapters. [C. L. § 3748. Cal. C. Civ. P. 2 1109. 3660. Id. New trials and appeals. The provisions of this code relative to new trials in, and appeals from, the district court, except so far as they are inconsistent with the provisions of the three chapters next preceding, apply to the proceedings mentioned in those chapters. [C. L. § 3749. Cal. C. Civ. P. 2 1110*. This section authorizes motion for new trial of proceeding originally commenced in supreme court. People, ex rel. Yearian, v. Spiers, 4 U. 385; 11 P. 509; 10 P. 609. CHAPTER 72. VOLUNTARY DISSOLUTION OF CORPORATIONS. 3661. Corporation may be dissolved upon its application. A corporation may be dissolved by the district court of the county where its office or principal place of business is situated, upon its voluntary application for that purpose. [C. L. § 3834. Cal. C. Civ. P. 2 1227*. Voluntary dissolution of irrigation company, ? 1288. 3662. Application, contents of. and must set forth: 1. Receiver may be appointed, ?? 3114, 3115. That at a meeting of the stockholders or members called for that purpose, the dissolution of the corporation was resolved upon by a two-thirds vote of all the stockholders or members. 2. That all claims and demands against the corporation have been satisfied and discharged. [C. L. § 3835. Cal. C. Civ. P. 1228. 3663. Id. By whom made. Verification. The application must be made by or in behalf of the board of directors, or, should the board decline to make the same, by any stockholder, and must be verified in the same manner as a complaint in a civil action. [C. L. § 3836*. Cal. C. Civ. P. ? 1229*. 3664. Order to file application. Notice by publication. If the judge is satisfied that the application is in conformity with this chapter, he must order it to be filed with the clerk, and that the clerk give not less than thirty nor more than fifty days' notice of the application, by publication in some newspaper having general circulation in the county. [C. L. § 3837*. Cal. C. Civ. P. ? 1230*. 3665. Objections to application. At any time before the expiration of the time of publication, any person may file his objections to the application. [C. L. § 3838. Cal. C. Civ. P. ? 1231. 3666. Hearing and notice to objectors. Decree. Decree. After the time of publication has expired, the court may, upon five days' notice to the persons who have filed objections, or without further notice, if no objections have been filed, proceed to hear and determine the application; and if all the statements therein made are shown to be true must declare the corporation dissolved. [C. L. §3839. Cal. C. Civ. P. 1232. 3667. Judgment roll. Appeal. The application, notices, proof of publication, objections, if any, and declaration of dissolution, constitute the judgment roll; and from the judgment an appeal may be taken as from judgments in other civil actions. [C. L. § 3840. Cal. C. Civ. P. 1233. CHAPTER 73. JUSTICES' COURTS-PLACE OF TRIAL. 3668. Place of trial of actions. Actions in justices' courts must be commenced, and, subject to the right to change the place of trial as in this chapter provided, must be tried: |