89 Neb. 100 | Neb. | 1911
The principal facts in this case are recited in the opinion on the former appeal. City of Crawford v. Darrow, 87 Neb. 494. When the cause was returned to the district court, the relator with leave of the court amended the title of the cause. The term of office of one of the respondents expired during the pendency of this action, and by amendment the name of his successor was substituted as respondent. The relator then applied to one of the judges of the court at chambers for a peremptory writ. The attorney for the respondents appeared and filed an answer in the names of the original respondents, ignoring the substitution of the name of the new member. The judge thereupon entered the following order: “The judge being
Upon the former appeal to this court, it appeared that the trial court had sustained a general demurrer of the respondents to the relator’s application for the writ. This court reversed the judgment of the trial court and remanded the cause, “with leave to relator to amend the alternative writ if one has been issued, if deemed necessary, and, in case none has issued, to amend its petition, if so advised.”
The same case holds that, if the respondent by answer or objection to the writ makes it appear that it will be necessary to determine substantial questions of fact in the case, a peremptory writ cannot be issued at chambers; issues must be formed by the alternative writ and return, and such issue must be tried in court.
The judgment of the district court is
Affirmed.