§ 25-2164 — Pleadings; trial

Nebraska § 25-2164

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

Text

No other pleading or written allegation is allowed than the writ and answer. These are the pleadings in the case, and have the same effect and are to be construed and may be amended in the same manner as pleadings in a civil action; and the issues thereby joined must be tried, and the further proceedings thereon had in the same manner as in a civil action.

Legislative History

Source: R.S.1867, Code § 653, p. 508; R.S.1913, § 8279; C.S.1922, § 9232; C.S.1929, § 20-2164; R.S.1943, § 25-2164. Annotations: 1. Pleadings 2. Trial 1. Pleadings The alternative writ and the answer constitute the pleadings. State ex rel. Krieger v. Board of Supervisors of Clay County, 171 Neb. 117, 105 N.W.2d 721 (1960). Where no ruling was made on demurrer to return and trial was had, demurrer was held to have been waived. State ex rel. League of Municipalities v. Loup River Public Power Dist., 158 Neb. 160, 62 N.W.2d 682 (1954). Difference between alternative and peremptory writ did not prejudice defendant. State ex rel. City of Grand Island v. Union Pacific R. R. Co., 152 Neb. 772, 42 N.W.2d 867 (1950). In mandamus proceedings no pleading is authorized other than writ and the answer; intervention should be denied. State ex rel. Randall v. Hall, 125 Neb. 236, 249 N.W. 756 (1933). Demurrer to alternative writ is irregular, but is treated as admission of facts alleged in writ. State ex rel. Glatfelter v. Hart, 106 Neb. 61, 182 N.W. 567 (1921). Demurrer is proper method to assail defective petition for mandamus. State ex rel. Kelley v. Ferguson, 95 Neb. 63, 144 N.W. 1039 (1914). Demurrer is proper to test sufficiency of petition. City of Crawford v. Darrow, 87 Neb. 494, 127 N.W. 891 (1910). Issuance of new writ to amend old is not commencement of new action. Kas v. State ex rel. School Dist. No. 1 of Sarpy County, 63 Neb. 581, 88 N.W. 776 (1902). No pleading other than writ and the answer is allowed. State ex rel. Wayne County v. Russell, 51 Neb. 774, 71 N.W. 785 (1897). Upon defendant's demurrer, writ only is considered. King v. State ex rel. School Dist. No. 1 of Hall County, 50 Neb. 66, 69 N.W. 307 (1896). Material averment in application, not denied in the answer, must be taken as true. State ex rel. Marquett, Deweese & Hall v. Baushausen, 49 Neb. 558, 68 N.W. 950 (1896). 2. Trial Mandamus is law action, and motion for new trial is necessary. State ex rel. McKee v. Porter, 90 Neb. 233, 133 N.W. 189 (1911). Liberal rules of amendment provided by code apply to mandamus proceeding. State ex rel. Shriver v. Karr, 64 Neb. 514, 90 N.W. 298 (1902). Jury trial is not demandable as matter of right. Mayer v. State ex rel. Wilkinson, 52 Neb. 764, 73 N.W. 214 (1897). Facts cannot be tried on affidavits over objection. American Waterworks Co. v. State ex rel. O'Connor, 31 Neb. 445, 48 N.W. 64 (1891). A motion for summary judgment is a proper procedural device in an action for a writ of mandamus. Russell v. Clarke, 15 Neb. App. 221, 724 N.W.2d 840 (2006).