State ex rel. Leonard v. School District Numbers three & four

8 Neb. 98

• Court: Nebraska Supreme Court
• Decided: October 15, 1878
• Status: Published

Opinion

Maxwell, Ch. J.

The application for a mandamus in this case is verified upon information and belief. An application verified in this manner, where there is no appearance on the part of the defendants, is sufficient cause for refusing either a peremptory or alternative writ.

In the case of The State, ex rel. Roberts, v. The Mayor, 4 Neb., 260, it was held that the statute requires the motion for the writ to be made upon an affidavit setting forth the facts upon which it is based, and that an affidavit stating that “the facts stated therein are true as affiant verily believes” is insufficient. And this is the rule at common law. Blackstone says: “ This writ is grounded on a suggestion of the oath of the party impaired of his own right and the denial of justice below.” 8 Blackstone Com., 111. The reason is evident; the facts are of such a character that they are or should be within the knowledge of the relator. The writ is denied upon this application, but the relator has leave to verify his application in the manner required by the statute.

Judgment accordingly.

CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF NEBRASKA, JANUARY TERM, 1879. PRESENT: Hon. SAMUEL MAXWELL, Chief Justice. “ GEORGE B. LAKE, ) “ AMASA COBB, [Judges.