Wagner v. Gladwin Circuit Judge

Michigan Supreme Court

Wagner v. Gladwin Circuit Judge

91 N.W. 155, 131 Mich. 129, 1902 Mich. LEXIS 594

CourtMichigan Supreme Court

DecidedJune 24, 1902

DocketCalendar No. 18,885

StatusPublished

Cited by1 cases

This text of 91 N.W. 155 (Wagner v. Gladwin Circuit Judge) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wagner v. Gladwin Circuit Judge, 91 N.W. 155, 131 Mich. 129, 1902 Mich. LEXIS 594 (Mich. 1902).

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Opinion

Montgomery, J.

The sole question presented on this application is whether the relator in a mandamus case [130]*130•may on his „ own motion, and without any suggestion o£ the necessity of framing an issue, or any order of the court in that respect, file a replication, and proceed to a hearing of the case on petition, answer, and replication. We think this question should be answered in the negative. Cir. Ct. Rule 46 c provides that “all m.aterial allegations of the petition in mandamus proceedings, not specifically answered by the respondent, may be taken as admitted by the respondent to be true as alleged.” Subdivision d provides that the proceeding “ shall stand for hearing upon the .return day of the writ, without notice of trial or hearing, unless the court; for cause shown, shall order a postponement of such hearing.” This rule does not contemplate the filing of a replication as matter of right. No provision is made for it. And while the court may frame an issue upon the application of the relator, and when an issue is framed a replication is a very proper pleading, we do not think that a replication is to be regarded as one of the regular pleadings in the case. The return in this case shows that no application for the framing of an issue was made to the court, and the ruling striking the replication from the files is sustained.

Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. .

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Montgomery, J.

The sole question presented on this application is whether the relator in a mandamus case [130]*130•may on his „ own motion, and without any suggestion o£ the necessity of framing an issue, or any order of the court in that respect, file a replication, and proceed to a hearing of the case on petition, answer, and replication. We think this question should be answered in the negative. Cir. Ct. Rule 46 c provides that “all m.aterial allegations of the petition in mandamus proceedings, not specifically answered by the respondent, may be taken as admitted by the respondent to be true as alleged.” Subdivision d provides that the proceeding “ shall stand for hearing upon the .return day of the writ, without notice of trial or hearing, unless the court; for cause shown, shall order a postponement of such hearing.” This rule does not contemplate the filing of a replication as matter of right. No provision is made for it. And while the court may frame an issue upon the application of the relator, and when an issue is framed a replication is a very proper pleading, we do not think that a replication is to be regarded as one of the regular pleadings in the case. The return in this case shows that no application for the framing of an issue was made to the court, and the ruling striking the replication from the files is sustained.

Hooker, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit. .

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Bluebook (online)

91 N.W. 155, 131 Mich. 129, 1902 Mich. LEXIS 594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagner-v-gladwin-circuit-judge-mich-1902.

Opinion

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