§ 25-2163 — Peremptory writ; when issued; failure to answer, effect; pleading new matter, effect

Nebraska § 25-2163

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

If no answer be made, a peremptory mandamus 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 proceeding, avail himself of any valid objection to its sufficiency, or may countervail it by proof, either in direct denial or by way of avoidance.

Legislative History

Source: R.S.1867, Code § 652, p. 508; R.S.1913, § 8278; C.S.1922, § 9231; C.S.1929, § 20-2163; R.S.1943, § 25-2163. Annotations: The issuance of a peremptory writ of mandamus under this section because of a respondent's failure to answer the alternative writ is the equivalent of a default judgment. State ex rel. Unger v. State, 293 Neb. 549, 878 N.W.2d 540 (2016). If no answer is filed to alternative writ, peremptory writ must be allowed. State ex rel. Krieger v. Board of Supervisors of Clay County, 171 Neb. 117, 105 N.W.2d 721 (1960). Plaintiff may avail himself of any valid objection to new matter contained in the answer. State ex rel. Seth Thomas Clock Co. v. Board of County Commissioners of Cass County, 60 Neb. 566, 83 N.W. 733 (1900).