95 Ill. App. 285 | Ill. App. Ct. | 1901
delivered the opinion of the court.
The only question presented upon this appeal is as to the sufficiency of the petition upon general demurrer. Mandamus is a common law action, and the pleadings are governed by common law rules. The petitioner is bound, like a plaintiff in an ordinary action at law, to state a case prima facie good. And in order to make a case which is prima facie good, the petition, which in our practice takes the place of the alternative writ, must show a clear right to have the thing done which is sought, and by the person or body sought to be coerced. People v. Hatch, 33 Ill. 9; People v. Mayor, 51 Ill. 17; S. & I. S. Ry. Co. v. Clerk, 74 Ill. 27; Hall v. People, 57 Ill. 307; County v. People, 85 Ill. 396; People v. Lieb, Id. 484; People v. Trustees, 86 Ill. 613; People v. Davis, 93 Ill. 133; People v. Crotty, Id. 180; People v. Johnson, 100 Ill. 537; Trustees v. People, 121 Ill. 552; People v. Commissioners, 176 Ill. 576; People v. Sellers, 179 Ill. 170; C., G. W. R. R. Co. v. People, Id. 441; People v. Commissioners, 180 Ill. 160.
But the pleader here, as elsewhere in common law pleadings, is not bound to plead evidence or public statutes.
The only grounds urged against the sufficiency of this petition is that it does not specifically allege the facts from which the court could conclude that the bond furnished bv the relator was sufficient. - In this behalf it is argued that the allegation that “ your petitioner filed his bond, which was required of him by law,” is an allegation of the pleader’s conclusion as to what the law required and the sufficiency of the bond to comply with such requirement. If the writ of mandamus sought was to compel action which involved the acceptance or approval of the bond, this contention would at least demand consideration. But the writ here sought is to compel the signing of a certificate of election, after a bond had been accepted and approved; and the petition alleges specifically that the board of trustees of the village, of which board- appellant is the president, had accepted and approved the relator’s bond. We think the petition sufficient in this respect.
The second and remaining contention of the learned counsel for appellant is that mandamus will not lie to compel the admission of one claimant to an office already held by another claimant thereto, nor to determine the question of title.' It is unnecessary to determine the validity of this contention, for it does not appear from the pleadings that there is another claimant to the office, bona fide or otherwise, and there can therefore be no question raised upon this record as to the propriety of proceeding by petition for writ of mandamus, rather than by information in the nature of quo warranto.
We are of opinion that the petition was sufficient to entitle the relator to the remedy sought. All material facts are sufficiently set forth, so that they may be admitted or traversed, and upon these allegations proof might be made which, under the statute, would entitle the relator to have his commission signed by the appellant as president of the board of trustees of the village. Chap. 24, Sec. 77, S. & C. Statutes.
The learned trial court did not err in overruling the demurrer.
The judgment is affirmed.
