State ex rel. McMullen v. Affholder

62 N.W. 871, 44 Neb. 497, 1895 Neb. LEXIS 62

Opinion

Harrison, J.

The appellee as relator filed a petition in the district-court of Burt county December 9, 1893, in an action then commenced by him against the appellants as officers of school district No. 58, Burt county, the object of which was to obtain the issuance of a writ of mandamus, ordering the appellants to comply with the provisions of an act of the legislature entitled “An act to provide cheaper text-books, and the district ownership of the same,” (Comp-Stats., 1893, pp. 771a, 7716,) and furnish to his children, and other pupils of the school in the district, text-books for their use. An alternative writ was allowed and served' upon appellants, to which they made a return or answer, and as a result of the submission to and consideration of the case by the district court a judgment was rendered against the respondents, by which a peremptory writ of mandamus was allowed to issue against them, from which judgment they appealed to this court.

An action of mandamus is an action at law and governed, in regard to trial and review, by the rules of practice applicable to .such actions and can only be reviewed in this-court in an error proceeding, and not by appeal. In the case of State v. Lancaster County, 13 Neb., 223, a case in which a mandamus proceeding was appealed to the supreme court, it was held: “A mandamus under our practice is an action at law, and is reviewable only on error and not by appeal;” and in the opinion it was said: “Appeals are authorized by statute in actions in equity, but a proceeding by mandamus is strictly a legal action. In Commonwealth v. Dennison, 24 How. [U. S.], 9.7, Taney, C. J., says: ‘A mandamus in modern practice is nothing more than an action at law between the parties, and is not now regarded as a prerogative writ.’ An action at law can be reviewed only on error.” (State v. Lancaster County, 13 Neb., 223; State v. Chicago, St. P., M. & O. R. Co., 19 Neb., 482; State v. School District, 30 Neb., 527; Maxwell, Pleading & Practice, 729.) The appeal in the case at bar must be dismissed.

Appeal dismissed.